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Issued in Washington, DC, under authority minimize the delay in processing DEPARTMENT OF THE INTERIOR delegated in 49 CFR 1.97. applications for these devices. Magdy El-Sibaie, Fish and Wildlife Service II. Background Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous PHMSA’s OHMS, Approvals and 50 CFR Part 17 Materials Safety Administration. Permits Division often receives approval [Docket No. FWS–R4–ES–2012–0068] [FR Doc. 2013–24082 Filed 10–1–13; 8:45 am] applications for Division 1.4G, BILLING CODE 4910–60–P consumer fireworks that are in the RIN 1018–AY19 shape of an animal or a small vehicle Endangered and Threatened Wildlife that produce multiple effects. In this DEPARTMENT OF TRANSPORTATION and Plants; Threatened Species Status notice, we are providing guidance for for Spring Pygmy Sunfish Pipeline and Hazardous Materials PHMSA-approval or FCA-certification AGENCY: Fish and Wildlife Service, Safety Administration of specialty fireworks devices. Interior. III. General Requirements 49 CFR Part 173 ACTION: Final rule. Specialty fireworks devices 2 may SUMMARY: We, the U.S. Fish and [Docket No. PHMSA–2013–0206; Notice No. include tanks, small fire trucks, cars, 13–15] Wildlife Service (Service), determine boats, animals, and other similarly threatened species status under the shaped devices that produce multiple Clarification on Fireworks Policy Endangered Species Act of 1973 (Act), effects (whistles, lights, sparks, noises, Regarding Approvals or Certifications as amended, for the spring pygmy etc.) simultaneously.3 for Specialty Fireworks Devices Specialty sunfish (Elassoma alabamae), which is fireworks devices, which are classified found in Limestone County, Alabama. AGENCY: Pipeline and Hazardous as UN0336, consumer fireworks, of The effect of this regulation is to add Materials Safety Administration Division 1.4G, must comply with the this species to the List of Endangered (PHMSA), DOT. requirements of 49 CFR 173.56(b), and Threatened Wildlife and implement ACTION: Clarification. 173.64 or 173.65, the APA Standard 87– the Federal protections provided by the 1 and the requirements below. SUMMARY: This document clarifies Act for this species. PHMSA’s policy regarding applications Specialty fireworks devices: DATES: This rule is effective December 2, for specialty fireworks devices. 1. Must be ground based with or 2013. Specialty fireworks devices are without movement; ADDRESSES: This final rule is available fireworks devices in various shapes that 2. May contain non-sequential fusing; on the Internet at http:// produce multiple effects, www.regulations.gov and at the 3. May not exceed 10 fiberboard or simultaneously. In this document, we Mississippi Ecological Services Field plastic tubes per device; are establishing our policy regarding Office site. Comments and materials specialty fireworks devices. 4. May not contain more than 2 grams received, as well as supporting DATES: October 2, 2013. of pyrotechnic composition per tube, documentation used in the preparation and not more than 20 grams pyrotechnic FOR FURTHER INFORMATION CONTACT: Mr. of this rule, are available for public composition in the finished device; Ryan Paquet, Director, Approvals and inspection at http:// Permits Division, Office of Hazardous 5. Have reports that do not contain www.regulations.gov. All of the Materials Safety, (202) 366–4512, more than 50 mg of explosive comments, materials, and PHMSA, 1200 New Jersey Avenue SE., composition per report; documentation that we considered in this rulemaking are available by Washington, DC 20590. 6. Must not contain aerial components appointment, during normal business SUPPLEMENTARY INFORMATION: and tubes with internal shells, which hours at: U.S. Fish and Wildlife Service, are prohibited; and I. Introduction Mississippi Field Office, 6578 Dogwood 7. Must not be combined with other View Parkway, Jackson, MS 39213; In this document, PHMSA’s Office of firework devices. Hazardous Materials Safety (OHMS) is telephone 601–321–1122; facsimile issuing its policy regarding specialty Issued in Washington, DC, under authority (601–965–4340). fireworks devices, which sets forth the delegated in 49 CFR 1.97. FOR FURTHER INFORMATION CONTACT: requirements for approval or Magdy El-Sibaie, Stephen Ricks, Field Supervisor, U.S. certification applications for ‘‘Specialty Associate Administrator for Hazardous Fish and Wildlife Service, Mississippi Fireworks Devices’’ classified as Materials Safety, Pipeline and Hazardous Ecological Services Field Office (see Division 1.4G, consumer fireworks. This Materials Safety Administration. ADDRESSES section). If you use a notice of our policy clarifies what is [FR Doc. 2013–24092 Filed 10–1–13; 8:45 am] telecommunications device for the deaf considered a ‘‘Specialty Fireworks BILLING CODE 4910–60–P (TDD), call the Federal Information Device’’ for fireworks manufacturers or Relay Service (FIRS) at 800–877–8339. their U.S. designated agents to enable may apply in writing to an FCA with the SUPPLEMENTARY INFORMATION: them to accurately apply for PHMSA information required in the APA Standard 87–1. After reviewing the application, the FCA will notify Executive Summary approval or Fireworks Certification the manufacturer, in writing, if the fireworks have Agency (FCA) certification 1 and been classed, certified, and assigned an FC number, Why we need to publish a rule. Under or if the application is denied (see 49 CFR 173.65). the Endangered Species Act (Act), a 1 Manufacturers of Division 1.4G, consumer 2 An example of a specialty fireworks device is a species warrants protection through fireworks have the option of applying to a DOT- fire truck with 10 tubes, 2 grams per tube, for a total listing if it is endangered or threatened approved fireworks certification agency (FCA) pyrotechnic weight of 20 grams. throughout all or a significant portion of instead of applying to PHMSA. The fireworks still 3 This policy only applies to UN0336, Fireworks, must conform to the requirements in the APA 1.4G, and does not apply to novelty fireworks its range. Listing a species as an Standard 87–1, and pass a thermal stability test. devices. Requirements for novelty fireworks devices endangered or threatened species can Instead of applying to PHMSA, the manufacturer are found in the APA Standard 87–1, Section 3.2. only be completed by issuing a rule.

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This rule lists the spring pygmy also considered all comments and Thorsen, and Horton springs, all in sunfish as a threatened species. In a information we received during two Limestone County, Alabama, along with separate, future rulemaking, we will public comment periods. associated spring runs, seeps, and finalize the designation of critical wetlands, are collectively referred to as Previous Federal Actions habitat for the spring pygmy sunfish. the Beaverdam Spring/Creek system. The basis for our action. Under the Federal actions for the spring pygmy The Beaverdam Creek watershed is the Act, we can determine that a species is sunfish prior to October 2, 2012, are least impacted groundwater-fed wetland an endangered or threatened species outlined in our proposed listing and in north Alabama as there are no other based on any of five factors: (A) The critical habitat rule (77 FR 60180), large springs in Lauderdale, Limestone, present or threatened destruction, which was published on that date. or Madison Counties that have not been modification, or curtailment of its Publication of the proposed rule opened developed for private or municipal use habitat or range; (B) overutilization for a 60-day comment period, which closed (Jandebeur 2012a, p. 1). The greatest commercial, recreational, scientific, or on December 3, 2012. On April 29, 2013 concentration of spring pygmy sunfish educational purposes; (C) disease or (78 FR 25033), we reopened the occurs within the Beaverdam Spring predation; (D) the inadequacy of comment period for an additional 30 site, which comprises 24 percent of the existing regulatory mechanisms; or (E) days, ending May 29, 2013. During this total occupied habitat for the species, other natural or manmade factors period, the public was invited to and has experienced the least human- affecting its continued existence. We comment on the entire October 2, 2012, induced disturbance. However, Sandel have determined that the spring pygmy proposed rule as well as the draft (2011, p. 6) has documented declines in sunfish is threatened based on three of economic analysis (DEA) of the all sites within the system. these five factors (Factors A, D, and E). proposed critical habitat designation. Current threats to the species include We did not receive any requests for a Historical Distribution and Status ground and surface water withdrawal public hearing. We will finalize the The spring pygmy sunfish historically and impacts to water quality within the designation of critical habitat for the occurred at two other sites. This species spring systems where this species spring pygmy sunfish in the near future. was initially discovered in 1938, in currently occurs and historically Cave Springs, Lauderdale County, occurred (Factor A). The species is also Background Alabama, where it was extirpated about facing many potential threats in the Species Information a year later due to inundation from the foreseeable future. These include habitat formation of Pickwick Reservoir modification in the form of planned Taxonomy and Species Description urban and industrial development of The spring pygmy sunfish was (Boschung and Mayden 2004, p. 615; land adjacent to spring pygmy sunfish discovered in 1937, but not described Jandebeur 2012b, p. 1). In 1941, this habitat and the likely impacts to the until 1993 (Mayden 1993, pp. 1–14). species was also discovered in Pryor spring system, including the Genetic analysis by Quattro et al. (2001, Spring within the Swan Creek surrounding aquifer recharge area. p.1, pp. 27–226) confirmed the watershed in Limestone County, Increased urban and industrial morphological diagnosis of the species Alabama, by Tarzwell and Bretton, development and associated secondary by Mayden (1993, pp. 1–14) as valid. where it was noted to be common development and infrastructure can Sandel (2008, pp. 1–18; 2012, entire) (Jandebeur 2011a, pp. 1–5). Sampling cause direct mortality as well as determined the species to be the most efforts in the Pryor Springs complex permanent loss and fragmentation of distinctive member of the family between 1966 and 1979 indicated a habitat (Factor A), which leads to Elassomatidae and provided sparse population of spring pygmy isolated subpopulations, thereby preliminary population genetic data for sunfish west of Highway 31. None has impacting gene flow throughout the the species. been reported east of Highway 31. The population (Factor E). Existing We accept the characterization of the exact location of the original 1941 regulatory mechanisms are inadequate spring pygmy sunfish as a valid species collection in Pryor Spring is uncertain, to reduce these threats (Factor D). based on the taxonomic characters but Jandebeur (2011a, pp. 1–5) However, conservation efforts that are distinguishing the species from other speculates the original site to be solely currently being implemented through a members of the Elassoma genus west of Highway 31, within the Pryor candidate conservation agreement with (Mayden 1993, p. 4). Its uniqueness is Spring Branch (spring-fed wetlands) and assurances (CCAA), as well as widely accepted by the scientific not in Pryor Spring proper (spring head additional conservation activities community, and there has been no and pool), east of the highway. planned for the near future, reduce the discrepancy concerning its However, in 1984, in an effort to impact of some of these threats. After distinctiveness as a separate taxonomic enhance this population in Pryor carefully considering the current entity (Boschung and Mayden 2004, p. Spring, fish were moved from Moss threats, current conservation activities, 614). Spring (Beaverdam Spring/Creek and future threats, we determined the A further description of the species is system) into Pryor Spring on both sides spring pygmy sunfish meets the provided in the proposed rule (77 FR of Highway 31 (Mettee and Pulliam definition of a threatened species under 60180; October 2, 2012). 1986, pp. 14–15). Reintroduction efforts the Act. continued into 1986 and 1987 (Mettee Peer review and public comment. We Current Distribution and Pulliam 1986, pp. 6–7). However, sought comments from three The range of the spring pygmy sunfish by 2007, the population was determined independent specialists knowledgeable is very restricted. The species currently to be extirpated due to impaired water in spring pygmy sunfish biology, basic occupies about 5.9 miles (mi) (9.5 quality and quantity, likely attributable conservation biology, and hydrology/ kilometers (km)) and 1,435 acres (ac) to contaminants from agricultural runoff spring system ecology to ensure that our (580.6 hectares (ha)) of four spring pools (Sandel 2008, p. 2; 2011, pp. 3, 6; determination is based on scientifically and associated features confluent with Jandebeur 2012d, pp. 1–2). Fluker (in. sound data, assumptions, and analyses. the middle to upper Beaverdam Spring/ litt. 2012) noted the species could still We invited these peer reviewers to Creek watershed. These spring pools, exist in Pryor Springs but at such low comment on our listing proposal. We which include Moss, Beaverdam, numbers as to not be detectable.

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The spring pygmy sunfish exhibits clear to slightly stained spring water, including agricultural withdrawals, a metapopulation structure within the occurring within spring heads (where lack of vegetation in the recharge area, Beaverdam Spring/Creek system (Sandel cool water emerges from the ground), or a function of the site-specific geology. 2008, pp. 15–16; 2011, p. 8). A spring pools (water pool at spring head), During drought periods, subsurface metapopulation is a group of individual spring runs (stream or channel water levels in Bobcat and Matthews populations that have some level of downstream of spring pool), and Cave on Redstone Arsenal, about 8 mi gene flow between them but are associated spring-fed wetlands (Warren (12.9 km) east of Beaverdam Spring/ spatially isolated by unfavorable 2004, pp. 184–185). The recharge area Creek watershed, are typically lower for intervening habitat created naturally or for Beaverdam Spring is about 1.7 longer periods of time compared to anthropogenically (Akcakaya et al. square miles (mi2) (1,088 ac) and wetter years (Moser and Rheams 1992, 1999, pp. 183–184). With continued extends from the western Beaverdam pp. 6–8; Rheams et al. 1992, pp. 7–20). temporal isolation and lack of gene Creek watershed boundary, eastward No direct correlation between flow, some populations of the group near Oakland Spring Branch, north groundwater levels in nearby caves and may go extinct. However, if extinction toward Huntsville Browns Ferry Road, wells and spring discharge rates or occurs, there is a probability that the and south to the bluff line where the water levels in Beaverdam Spring has empty habitat patches will be spring discharges (Cook et al. 2013, p. been determined. Cook et al. (2013, p. recolonized by some members of the 9). No contemporary water flow rates 14) found that withdrawal for the March metapopulation (Levins 1968, pp. vi, from the springs are available. However, 2012 base flow (the water in a stream 39–65; Levins 1970, pp. 77–107; Gotelli historical flow rates for Pryor Spring that originates from groundwater 1991, p. 768). For the spring pygmy (where the species once occurred) and seepage or springs and is not from rain sunfish, migration and continuity Moss Spring of 800 to 5,000 gallons per runoff) from Beaverdam Spring was between spring pools is essential in minute (gpm) (3,000 to 19,000 liters per about 3.5 percent (9.6 million gallons maintaining the species’ genetic minute (lpm)) (tabulated from Chandler per day) of the total flow (base flow and diversity within the Beaverdam Spring/ and Moore 1987, pp. 3–4), respectively, stormwater) of Beaverdam Creek, Creek system, and the species as a indicate that the spring pygmy sunfish indicating the current withdrawals have whole. is associated with moderately flowing little effect on the discharge rate of Sandel (2008, pp. 15–16; 2011, p. 8) springs of the second to fourth order Beaverdam Spring. However, effects of found that the spring pygmy sunfish (after Meinzer 1923 in Chandler and water withdrawal are more obvious in metapopulation in Beaverdam Spring/ Moore 1987, p. 5; McMaster and Harris the other springheads, especially during Creek is composed of isolated 1963, p. 28). drought (Sandel 2011, p. 6). populations within the spring pools and The species is most abundant at the spring runs. These pools and runs are In general, natural spring pool spring outflow or water emergence connected spatially and temporally with habitats are typically static, persisting (spring head) from the ground and periods of isolation and connectivity without disruption for long periods, spring pool area (Sandel 2009, p. 14), that are dependent on the extent and even during droughts, in the absence of typically occupying areas with water composition of aquatic vegetation, water water extraction. However, the depths from 5 to 40 inches (in) (13 to quality, water quantity, and other Beaverdam Spring/Creek system 102 centimeters (cm)) and rarely in the parameters such as unintentional fish contains three altered springheads upper 5 in (13 cm) of the water column. barriers at road crossings (e.g., clogged (Moss, Horton, and Thorsen), and only The spring pygmy sunfish prefers pipe or culvert) (Drennen 2010, pers. one springhead (Beaverdam Spring) that patches of dense filamentous observ.). The individual spring pygmy can be considered a natural surface submergent vegetation, including sunfish populations within the spring pool habitat. Over the last 50 Ceratophyllum echinatum (spineless metapopulation are intermittently years, Moss, Horton, and Thorsen hornwort), Myriophyllum connected via migration and Springs have all experienced some heterophyllum (two-leaf water milfoil), recolonization after local extinction degree of anthropogenic disturbance and Hydrilla verticillata (native events. Although no supporting data (Sandel 2011, p. 1–11; Jandebeur 2012d, hydrilla). Other important plant species were provided, Jandebeur (2011b, pp. 1– pp. 1–22). This includes mechanical for this sunfish include emergent 13) presented an alternate hypothesis enlargement and water withdrawals that species such as Sparganium spp. (bur that these populations of spring pygmy can cause excessive pool level reed), Polygonum spp. (smartweed), sunfish may have evolved in relation to fluctuations and be particularily Nasturtium officinale (watercress), beaver ecology, and that during damaging to the spring pygmy sunfish Juncus spp. (rush), and Carex spp. migration of spring pygmy sunfish from during times of drought. These springs (sedges); and semi-emergent vegetation beaver pond habitats, the species may seemed to have recovered biologically at including Nuphar luteum (yellow pond colonize or recolonize existing habitats some level; however, lower population lily), Utricularia spp. (bladderwort), and downstream, even though individual numbers of the species are associated Callitriche spp. (water starwort) subpopulations may be extirpated due with these springs (Sandel 2011, p. 6). (Mayden 1993, p. 11; Jandebeur 1997, to drought or other ecological issues. The long-term impacts on these springs’ pp. 42–44; Sandel 2011, pp. 3–5, 9–11; geological and hydrological functions Kuhajda in litt. 2012). The spring pygmy Habitat from disturbance are not known. sunfish is also associated with a variety The spring pygmy sunfish is a spring- Beaverdam Spring pool, which is of other spring-dwelling species, associated (Warren 2004, p. 185) and unaltered, has seasonal water levels including amphipods, isopods, spring groundwater-dependent (Jandebeur consistent throughout the year salamanders, crayfish, and snails 2011, pers. comm.) fish endemic to the (Jandebeur 2012a, pp. 1–16). Cook et al. (Mayden 1993, p. 11; Sandel 2011, pp. Tennessee River drainage in the Eastern (2013, p. 13) reported the discharge 11–12). Highland Rim physiographic province rates in Beaverdam Spring as 1.7 to 4.5 and Dissected Tablelands (Marbut et al. cubic feet per second (cfs) (776 to 2,020 Life History 1913, p. 53) of Lauderdale and gallons per minute (gpm)) and suggested The spring pygmy sunfish has low Limestone Counties in northern that this wide range of discharge may fecundity (reproductive capacity) Alabama. Spring pygmy sunfish prefer originate from a variety of sources indicating a species that is adapted to

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and requires highly stable groundwater- habitat in the final critical habitat rule related in topic to peer reviewer dependent habitats and an ecological that will publish in the Federal Register comments. dependence upon unchanging habitats in the near future. All comments we (1) Comment: Two of the three peer in early life stages (Rakes in litt. 2012). received either expressed an opinion on reviewers and two other commenters The species is short-lived (essentially an the proposed listing or provided stated that the species should be listed ‘‘annual’’) and becomes shorter-lived additional background information on as endangered and not as threatened. and extremely vulnerable to population the species including its habitat, threats, They stated that endangered status was extirpation as water temperatures rise and/or its conservation needs. Ten of more appropriate for this species since (Rakes in litt. 2012). Adults reproduce the 18 commenters specifically it was confined to a single population from January to October. Spawning commented on the species’ proposed that is at risk of extirpation. They cited begins in March and April, when water listing as threatened. Two expressed the establishment of the current CCAA quality parameters are within a suitable opposition to the listing, and the as insufficient justification for the range (pH of 6.0 to 7.7 and water remaining eight supported the species’ proposed threatened status due to temperatures of 57.2 to 68 degrees listing, with six of these eight threats to the species outside the Fahrenheit (°F) (15 to 20 degrees Celsius recommending an endangered boundaries of the CCAA from the (°C)) (Sandel 2007, p. 2; Mettee 2008, p. designation instead of the proposed projected growth of the Huntsville area. 36; Petty et al. 2011, p. 4). Spring pygmy threatened designation. Two In addition, they noted that all sunfish produce about 65 eggs, and commenters were affiliated with a State protection afforded to the species hatching occurs from April to agency (Geological Survey of Alabama), through the CCAA could be nullified as September (Sandel 2004–2009, pers. and all remaining comments were the landowner can opt to terminate the observ.). Two spawning attempts per received from nongovernmental CCAA with notice. year have been reported in captivity organizations or individuals. All Our Response: The determination to (Petty et al. 2011, p. 4). In captivity, the substantive information provided list the spring pygmy sunfish as spring pygmy sunfish may live slightly during both comment periods related to threatened was based on the best longer than 2 years, but normally their the listing decision has either been available scientific and commercial data life span is 1 year or less (Boschung and incorporated directly into this final on its status, the existing and potential Mayden 2004, pp. 614–615). Compared determination or is addressed below. threats to the species, and current and to other pygmy sunfishes, spring pygmy proposed conservation measures Peer Review sunfish have the highest average through CCAAs (see Summary of number of eggs per spawn, but the In accordance with our peer review Factors Affecting the Species and lowest percentage of egg survival, which policy published on July 1, 1994 (59 FR Determination sections, below). Though increases the species’ vulnerability 34270), we solicited expert opinion the spring pygmy sunfish is confined to (Mettee 1974, p. 38). from three knowledgeable individuals a single population, the protection with scientific expertise that included afforded to the species and its habitat Summary of Comments and familiarity with the spring pygmy through the established Belle Mina Recommendations sunfish and its habitat, biological needs, Farms CCAA ameliorates the current In the proposed rule published on and threats. We received responses from threats to the species to the point that October 2, 2012 (77 FR 60180), we all three of the peer reviewers. threatened status is appropriate. The requested that all interested parties We reviewed all comments we Belle Mina Farms CCAA provides submit written comments on the received from the peer reviewers for protection for the largest population of proposal by December 3, 2012. We also substantive issues and new information the species within the springhead and contacted appropriate Federal and State regarding the listing of the spring pygmy spring pool of about 165 ac (66.8 ha) agencies, scientific experts and sunfish. The peer reviewers generally and 963 ac (390 ha) (88.5 percent) of the organizations, and other interested concurred with our methods and recharge area. The middle section of the parties and invited them to comment on conclusions and provided additional species’ range, which is downstream the proposal. A newspaper notice information, clarifications, and from Belle Mina Farms, is owned by two inviting general public comment was suggestions to improve the final rule. landowners who are currently working published in the Huntsville Times on Two of the three peer reviewers were in with the Service to protect and manage October 14, 2012. We did not receive support of the listing, although they their section of habitat for the species any requests for a public hearing. On recommended that we list the species as through proposed CCAAs. These April 29, 2013, we published a notice endangered. The third peer reviewer conservation actions will reduce the (78 FR 25033) reopening the comment provided additional information, severity of certain threats to the species period on the October 2, 2012, proposed clarification, and suggestions to improve outlined under Factor A (see below) rule (77 FR 60180), announcing the the final rule and remarked about the within the upper and middle portions of availability of our DEA on the proposed difficulty in assessing the hydrology and the Beaverdam Spring/Creek and Moss critical habitat designation, and groundwater issues in the area, but did Spring sites. The remaining species’ requesting comments on both the not specifically comment on the species’ habitat in the lower reach of the proposed rule and the DEA. This proposed listing. Peer reviewer Beaverdam Spring/Creek system, though comment period closed on May 29, comments are addressed in the of lower quality, is federally owned and 2013. following summary and incorporated protected within the Wheeler National During the comment periods for the into the final rule as appropriate. Wildlife Refuge (NWR). We proposed rule, we received a total of 18 acknowledge that large-scale residential comments on the proposed listing of the Peer Reviewer Comments and industrial development in spring pygmy sunfish and proposed This section focuses on comments association with the growth of the City designation of critical habitat. In this from peer reviewers and our responses of Huntsville could pose a serious future final rule, we address only the to them. However, we have also threat to the species and its habitat. comments regarding the proposed included other public comments in this The Belle Mina Farms CCAA includes listing of this species, and we will section (referred to as ‘‘other conservation measures to minimize address comments related to critical commenters’’) if those comments were impacts to the species and its habitat

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

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to our policy (see Peer Review section, based its proposed listing on Beaverdam Creek is speculative and above). The other two peer reviewers, information from the petition, which is contradicted by prior research. It is while providing additional information scientifically unreliable since it unknown if the species has been on habitat, life history, and threats, consisted of unconfirmed information extirpated from Pryor Springs, and agreed that our threat assessment and personal observations. The Service based on previous surveys, Wheeler supported our decision to list this should not base listing decision on NWR contains numerous areas species, though they stated endangered potential threats that are pure populated by the spring pygmy sunfish. status was more appropriate (see speculation. Peer-reviewed literature Surveys to date have been limited to Comment 1). In short, we based our and other data do not support a listing. unaltered spring runs with filamentous, decision on the best scientific and Our Response: See our responses to submergent vegetation. The habitat and commercial data available, as required Comments 1, 2, 3 and 4, above. Under range of spring pygmy sunfish is by section 4(b)(1) of the Act. the Act, we determine whether a species broader and more diverse, as there is (5) Comment: One peer reviewer is endangered or threatened due to any documented evidence of sustained commented that sampling may be of the five factors (see Summary of populations in areas of differing water inadequate relative to technique and Factors Affecting the Species, below), qualities such as beaver dam method or insufficient in scope to and we are required to make listings impoundments, creek banks, and lake adequately assess population size and determinations on the basis of the best backwaters. Exploration of all potential distribution. Another individual stated available scientific and commercial data habitats is needed to establish the range that documented population declines available (16 U.S.C. 1533(a)(1) and of the species and undertake any listing were questionable and were a reflection (b)(1)(A)). The Service reviews and uses decision. information on the biology, ecology, of inadequate sampling methods. Our Response: Our determination that distribution, abundance, status, and Our Response: Relative abundance of the spring pygmy sunfish’s range is trends of species, as well as information spring pygmy sunfish estimated by restricted to approximately 6 miles of on current and potential threats, from a catch-per-unit-effort (CPUE), the method Beaverdam Creek is supported by the wide variety of sources as part of our that was employed, is a standard metric best scientific and commercial data responsibility under the Act. Some of in biological surveys and is an approved available as required under section this information is anecdotal, some of it method by the American Fisheries 4(b)(1) of the Act. This species was is oral, and some of it is found in Society for estimating fish abundance historically known from three written documents. These documents (Murphy and Willis 1996, pp. 158–159), independent tributaries of the as is comparing this information include status surveys, biological assessments, and other unpublished Tennessee River: Cave Spring, Pryor through time at various collection sites. Spring/Branch, and Beaverdam Spring. The information gathered during the material (i.e., ‘‘gray literature’’) from State natural resource agencies and The Cave Spring population was field work is of sufficient extent and extirpated in 1934, and the Pryor duration to document the rarity of the natural heritage programs, Tribal governments, other Federal agencies, Spring/Branch System population was spring pygmy sunfish and its population extirpated in the 1940s. Reintroduction decline and adheres to the information consulting firms, contractors, and individuals associated with professional efforts into Pryor Spring in the 1980s standard in section 4(b)(1) of the Act, as were ultimately unsuccessful, as the the use of the best scientific and organizations and higher educational institutions. We also use published species has not been observed in this commercial data available. articles from juried (peer-reviewed) system since 2007 (see ‘‘Historical Comments From States professional journals whenever Distribution and Status’’ in the Background section, above). All of these Section 4(i) of the Act states, ‘‘the available. All decisions are made on the basis of spring habitat localities shared similar Secretary shall submit to the State the best scientific and commercial data biological and physical parameters (see agency a written justification for his available and are subject to extensive ‘‘Habitat’’ in Background section, failure to adopt regulations consistent internal review as well as external peer above). This type of habitat is rare with the agency’s comments or review by recognized authorities to help today, as these systems were mostly petition.’’ We received two comments ensure that our decisions conform to developed to meet demand for public from individuals who are employees of contemporary scientific principles. We water supply and irrigation. In fact, a State agency. One of these individuals have incorporated the most current and Beaverdam Spring is the only remaining was also a peer reviewer of the proposed historical scientific and commerical large spring in north Alabama that has rule (see Peer Reviewer Comments data available concerning the habitat not been similarly developed (see section, above). Both provided and natural history of the species (see Summary of Factors Affecting the additional information on the species’ Background section, above). Our Species section, below). Extensive fish habitat and threats, which has been determination of threatened status for surveys within Limestone and Madison incorporated into this final rule, and this species is supported by the Counties in related spring systems with neither stated a position on the information presented in our Summary similar vegetation structure as in proposed listing of the spring pygmy of Factors Affecting the Species Beaverdam Spring, and also in different sunfish as threatened. discussion, below, and complies with aquatic spring-related habitats, have not Public Comments the Act’s requirement to base our located any additional spring pygmy decision on the basis of the best sunfish localities (Caldwell 1965; General Comments Issue 1: Science scientific and commercial data Armstrong 1967; Jandebeur 1979; (6) Comment: One individual available. We have also complied with Mettee and Pulliam 1986; Etnier 1990; commented that the listing of the spring our policy on peer review (59 FR 34270) Shute 1994; Jones 1995; Larson 1995; pygmy sunfish is not supported by the as discussed under the Peer Review Mayden et al. 1995; Jandebeur 1997, best science and is not warranted. section above. 2011a; Sandel 2008, 2009, 2011). Service policy requires that peer- (7) Comment: One individual stated Though the species has been found in reviewed literature be considered that our assertion that the spring pygmy some habitats that have been altered scientifically superior. The Service sunfish occupies only 5 river miles of from their original natural condition,

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such as a beaverdam, there is no support a metapopulation hypothesis billion liters) at an estimated flow rate evidence that these are sustaining for the spring pygmy sunfish. of 450 gpm (1,740 lpm) (Holland 2011, populations. To the contrary, the latest Our Response: The best scientific and pers. comm.). Groundwater withdrawal data reported by Sandel (2011, p. 6), for commercial data available support our by the cities of Huntsville and Madison collections within the spring pygmy conclusion that the spring pygmy (east of the spring pygmy sunfish sunfish’s current range between 2005 to sunfish exhibits metapopulation habitat), and the adjacent rural 2010, indicate declines in all known structure within the Beavedam Spring/ population, is estimated at 16 million populations including Beaverdam Creek system. Studies by Sandel (2008, gallons per day (62 million liters per Creek, and Moss, Horton, and Thorsen pp. 15–16; 2011, p. 8) found that the day) (Hoos and Woodside 2001, p. 1; Springs. The spring pygmy sunfish was spring pygmy sunfish population in Kingsbury 2003, p. 2; Sandel 2007– last documented to occur on the Beaverdam Spring/Creek is composed of 2009, pers. comm.). Negative impacts to Wheeler NWR approximately 20 years isolated populations within the spring the spring pygmy sunfish from ago in 1993; thus, we consider this area pools and spring runs, and that the excessive ground water extraction are in the lower range of Beaverdam Spring/ individual spring pygmy sunfish discussed in the Summary of Factors Creek system to be part of the historical populations are intermittently Affecting the Species section, below, range. Based on our review of the best connected via migration and and also in our response to Comment 2, available scientific and commerical recolonization after local extinction above. data, including analysis of the species events. This population structure is consistent with the definition of General Comments Issue 2: Procedural habitat and previous status surveys, the and Legal Issues surveys for the species have been metapopulations (see ‘‘Historical appropriate and have confirmed its Distribution and Status’’ in Background (12) Comment: One individual rarity, vulnerability, and range. section, above). commented that the Service must not only examine and evaluate the raw data (8) Comment: One commenter (10) Comment: One individual stated but must also make those data available postulated that mechanical disturbance that the Service’s assertion that the spring pygmy sunfish is a separate and to others. Internal materials relied upon and siltation actually benefit the spring distinct species is questionable. by the Service have not been made pygmy sunfish. He stated that the spring Our Response: We disagree. The available for public review. pygmy sunfish tolerates and thrives commenter did not provide any data to Our Response: Complete lists of where there has been substantial support his statement. The best references, including unpublished modification to the spring habitat scientific and commercial data indicate information, cited in the proposed rule through agricultural and animal that the spring pygmy sunfish is a (77 FR 60180; October 2, 2012) and in husbandry practices as evidenced by its distinct, well-described taxon. We are this final rule are available on the long-term coexistence with cattle. not aware of any disagreement within Internet at http://www.regulations.gov at Our Response: There is no the scientific community concerning its Docket No. FWS–R4–ES–2012–0068 and information or evidence to support the taxonomic status (see ‘‘Taxonomy and upon request from the Mississippi premise that the species thrives in Species Description’’ in Background Ecological Services Field Office (see habitat modified by livestock or in areas section, above). ADDRESSES, above). In addition, as with siltation and disturbance. The best (11) Comment: One individual stated stated in our proposed rule, all available scientific and commercial data that we characterized water withdrawal supporting documentation used in indicate that habitat alteration has been for irrigation usage incorrectly for the preparing the proposed rule was a causative factor in the decline of the Beaverdam Spring system, and we available upon request and for public spring pygmy sunfish. The species is should have used information that inspection, by appointment, at the U.S. known in greatest numbers from the presents water quantity issues, Fish and Wildlife Service, Mississippi spring head of Beaverdam Spring/Creek, withdrawal rates, water volume usage, Ecological Services Field Office. All where there is no livestock impact and and specific connectivity among the supporting documentation used in our no evidence of problems with excessive various water features of the spring rulemakings is a matter of public record; sedimentation. The spring pygmy system. however, the number of sources sunfish may be able to tolerate some Our Response: We agree that more referenced is often voluminous. degree of habitat and water quality detailed studies would contribute to a Therefore, it is not possible for us to modification for short periods of time better understanding of water post all information sources used on the and may be able to reestablish withdrawal usage in the Beaverdam Internet. themselves given improved conditions. Spring system. However, in accordance (13) Comment: One individual However, livestock impacts to aquatic with the information standard under commented that listing was unnecessary habitat are well-documented in the section 4(b)(1) of the Act, we used the in light of the current and proposed scientific literature, and suspended best scientific and commercial data CCAAs and that these agreements are sediments, which are stressors to available in assessing water extraction more successful at protecting the aquatic organisms, are typically usage in the Beaver Spring/Creek species than listing. Threats to the increased in aquatic habitats used by system. We gathered water extraction species can be alleviated through less livestock. Excessive sediment directly information from the Limestone County restrictive means such as the use of best impacts fish health and decreases water Water and Sewer Board, along with management practices (BMPs). clarity, which reduces light penetration information from a recent initial Our Response: We agree that CCAAs needed for plant growth and indirectly assessment of the aquifer and recharge are a cooperative mechanism to manage results in impacts to fish, and in area by GSA (Cook et al. 2013, entire). and protect the spring pygmy sunfish. particular, the spring pygmy sunfish’s As discussed in the Summary of Factors The CCAA (Belle Mina Farms) spawning and feeding sites (see Affecting the Species section of this developed for the species identifies Summary of Factors Affecting the rule, commercial water withdrawal from BMPs that adequately protect the Species, Factor A section). the aquifer by the Limestone County species and its habitats from current (9) Comment: One individual pumping station, between 2006 and land use practices within the areas commented that there are no data to 2011, was over 1 billion gallons (3.9 enrolled in the CCAA. The two

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proposed CCAAs also identify similar States v. Hill, 896 F. Supp. 1057 (D. between the 2000 and 2010 census (Hill BMPs. However, the conservation Colo. 1995). All of these courts have in litt. 2013), and the accompanying actions in the current and proposed held that regulation under the Act to demand for water could alter the CCAAs do not remove the threats to the protect species that live only in one Beaverdam Spring/Creek system and its species and its habitat to the point that State is within Congress’ Commerce recharge areas through increased water listing is not necessary, especially when Clause power and that loss of animal extraction (pumping), diversion, and considering probable and potential diversity has a substantial effect on retention (Erman 2002, p. 8; Cook et al. impacts from planned residential and interstate commerce (National Ass’n of 2013, pp. 33–34). Because springs industrial development. In the Home Builders, 130 F.3d at 1050–51; see provide shelter, thermal refuge, Summary of Factors Affecting the Rancho Viejo, 323 F.3d at 310, n. 5). breeding sites, movement corridors, and Species and Determination sections, Thus, although the spring pygmy prey source habitat for the spring pygmy below, we discuss our analysis of the sunfish is currently known to occur sunfish, the species is dependent on threats to the species weighed against only within the State of Alabama, the water quantities sufficient to provide the benefits provided through the Service’s application of the Act to add spring habitat that is stable and current and proposed CCAAs. The this species to the Federal List of permanent (Erman 2002, p. 8). Within primary threat to the species is from Endangered and Threatened Wildlife is the spring pygmy sunfish range, the habitat modification (Factor A), most constitutional. Beaverdam Spring pool area, which has notably the large-scale industrial and the greatest concentration of spring Summary of Changes From Proposed residential development planned pygmy sunfish, is the least disturbed of Rule adjacent to this species’ habitat, which all springs in the system. Moss, has the potential to impact the In response to comments, we have Thorsen, and possibly Horton Springs, hydrology and other aspects of the incorporated additional information which have been altered in some spring system. The use of BMPs pertaining to this species’ conservation, manner over the last 60 plus years, were outlined in the CCAAs are important life history, and habitat as provided by allowed to recover and stabilize; measures in conserving the spring the peer reviewers and others. however, these springs support lower pygmy sunfish, particularly considering Specifically, we added new information numbers of the species than Beaverdam the current agricultural land use within on the hydrology of the Beaverdam Spring. The condition of Pryor Springs the watershed. However, when land use Spring/Creek watershed into the and spring run continued to deteriorate changes to industrialization and Background and Summary of Factors over time (Sandel 2008, pp. 1–31; 2011, urbanization, as is likely in this area, the Affecting the Species sections of this pp. 1–3, 1–11; Jandebeur 2012c, pp. 15– standard BMPs from the CCAAs are rule. In addition, we have edited our 16; 2013, pp. 2–5) to the eventual inadequate to address the complex threat discussion under the Summary of demise of the species at this site in issues such as aquifer recharge, Factors Affecting the Species section 2007. stormwater management, and chemical and most notably added new Urban and Industrial Development transport in association with information pertaining to the proposed development. In addition, there may be industrialization of the Beaverdam The history of development of large activities associated with the increased Spring/Creek watershed under the springs does not inspire confidence that development, such as roadways and Factor A discussion. the Beaverdam Spring environs will be utility (e.g., water, sewer, and electrical) conserved as a natural ecosystem Summary of Factors Affecting the corridors outside of the landowner’s (Jandebeur 2012a, p. 22). Groundwater- Species control, that have the potential to fed habitat suitable for the spring pygmy impact land enrolled in the current and Section 4 of the Act and its sunfish was historically more prevalent proposed CCAAs. Therefore, the spring implementing regulations (50 CFR 424) across the Tennessee Valley region of pygmy sunfish needs the protection set forth the procedures for adding north Alabama than today, as these afforded to federally listed species species to the Federal Lists of systems were mostly developed to meet under sections 7 and 9 of the Act to Endangered and Threatened Wildlife demand for public water supply and ensure its conservation. and Plants. A species may be irrigation, as well as recreational parks (14) Comment: The Service does not determined to be an endangered or (Jandebeur 2012a, p. 1). Except for have authority to take action for a threatened species due to one or more Beaverdam Spring, there are no large purely intrastate species such as the of the five factors described in section springs remaining in Lauderdale, spring pygmy sunfish. It is questionable 4(a)(1) of the Act: (A) The present or Limestone, or Madison County that have if the Federal government can regulate threatened destruction, modification, or not been developed for private or such a species under the Commerce curtailment of its habitat or range; (B) municipal use (Jandebeur 2012a, p. 22). Clause of the U.S. Constitution. An overutilization for commercial, Urban development adjacent to the action listing the spring pygmy sunfish recreational, scientific, or educational Beaverdam Spring/Creek system could is beyond the powers afforded to the purposes; (C) disease or predation; (D) fragment and directly impact suitable Service and Federal Government. the inadequacy of existing regulatory spring pygmy sunfish habitat by Our Response: The constitutionality mechanisms; or (E) other natural or decreasing water quality and quantity, of the Act in authorizing the Services’ manmade factors affecting its continued changing the aquatic vegetation protection of endangered and threatened existence. Listing actions may be structure, and limiting the species’ species has consistently been upheld by warranted based on any of the above movement throughout the system. When the courts (e.g., GDF Realty Investments, threat factors, singly or in combination. an area is urbanized, many impermeable Ltd. v. Norton, 326 F.3d 622 (5th Cir. Each of these factors is discussed below. surfaces are constructed such as roofs, 2003); Gibbs v. Babbitt, 214 F.3d 483 pavements, and road surfaces. All are (4th Cir. 2000); National Association of Factor A. The Present or Threatened intentionally constructed to be far less Homebuilders v. Babbitt, 130 F.3d 1041 Destruction, Modification, or permeable than natural soils and to (D.C. Cir. 1997), cert. denied, 524 U.S. Curtailment of Its Habitat or Range remove stormwater quickly, which 937 (1998); Rancho Viejo v. Norton, No. Increased human population growth results in a reduction in direct recharge 01–5373 (D.C. Cir. 2003); and United in Limestone County of over 20 percent into the aquifer, increased stormwater

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runoff (Younger 2007, p. 39), acute and than 68 percent of the proposed (Sasaki 2011, pp. 1–83). The potential chronic changes in water quality development area is adjacent to the over-development of groundwater parameters such as decreased oxygen Beaverdam Spring/Creek watershed and resources, especially in the recharge levels, increased temperature, consists of four major industrial sites areas for Beaverdam Spring, Moss concentrations of toxic heavy metals or encompassing approximately 4,000 ac Spring, and the Beaverdam Creek, raises other molecules (Cooper 1993, pp. 402– (1,619 ha) (Bostick and Davis 2013, pers. concerns about the potential loss of 406; McGregor and O’Neil 2011, pp. 5– comm.). The Huntsville Master Plan groundwater-fed habitat essential to the 15; Cook et al. 2013, pp. 33–34), and would cover much of the known only remaining population of the increased water quantity and flow recharge area with residential, species (Jandebeur 2012a, p. 20–21). velocity (Field and Sullivan 2003, pp. commercial, and industrial The Fort Payne Chert of the Early 326–333). development (Jandebeur 2012a, p. 20). Mississippian Age is the principal The stormwater flow velocity carries The restricted-use area for subdivision aquifer of spring pygmy sunfish habitat sediments that may scarify (make development, within the City of and provides groundwater to all of scratches or cuts in) rock and gravel Huntsville, is a minimum of 25 ft (7.6 Limestone County (McMaster and substrates (Waters 1995, pp. 57, 66) and m) from the perimeter of a perennial Harris, Jr. 1963, p. 1; Cook et al. 2013, uproot aquatic vegetation, thereby spring. However, no restrictions are set pp. 3–7). Groundwater in the County is destroying important foraging, forth for ephemeral springs or seasonal ultimately derived from percolation of spawning, and refuge habitat for the groundwater seepages (City of precipitation (McMaster and Harris, Jr. species (Field and Sullivan 2003, pp. Huntsville 2007, p. 28), which include 1963, p. 17; Cook et al. 2013, pp. 3–13) 326–333). Excessive sediment has been many of the ephemeral springs, into the aquifer system. In urban shown to wear away and suffocate seepages, and streams draining into the settings, percolation of rainwater to the periphyton (organisms that live attached Beaverdam Spring/Creek watershed. aquifer may be disrupted due to less to objects underwater), disrupt aquatic These features are necessary for pervious zones and more shunting of insect communities, and negatively maintenance of seasonal flow rates. rainfall into stormwater systems impact fish growth, physiology, Filling them or converting them to (Younger 2007, pp. 117–121; Healy behavior, reproduction, and survival developed areas could therefore 2010, pp. 70–72). Change in land use (Waters 1995, pp. 109–118). Fish gills adversely affect the spring pygmy from rural to urban/industrial (Bostick are delicate and easily damaged by fine sunfish. In addition, there are roads and Davis 2013, pers. comm.) within the sediment. As sediment accumulates in proposed to connect the planned Beaverdam Spring/Creek area could be the gills, fish respond by excessively developments with the Interstate 65 and detrimental to the spring pygmy sunfish opening and closing their gills to try to Interstate 565 corridors (Sasaki 2011, due to negative changes in the water remove the silt. If irritation continues, pp. 1–83), along with feeder roads and quality parameters such as oxygen and mucus is produced to protect the gill improvements on primary and temperature, along with changes in surface, which may impede the secondary existing roadways in support water quantity, such as increased stream circulation of water over gills and hence of new residential and industrial flow and velocity, due to increased interfere with respiration. Under projects (Sasaki 2011, pp. 1–83; Hill in amounts of impervious materials and extreme or prolonged exposure to litt. 2013). Developed, paved-over areas associated stormwater runoff in the sediments, fish may actually die due to (impervious substrate) promote runoff watershed (Cook et al. 2013, pp. 33–34). This may be coupled with a subsequent physically damaging and clogging their and inhibit infiltration, changing water gills (Berg 1982, pp. 177–195). reduction in precipitation infiltrating flow rates from slow and incremental to The spring pygmy sunfish is currently through the soil surface to the aquifer, fast and localized, because stormwater facing threats from ongoing which will ultimately reduce spring is directed via surface routes into development and from planned large- base flow (Field and Sullivan 2003, pp. specific areas of the receiving stream, scale residential and industrial projects 326–333; Healy 2010, p. 3). within the vicinity of the Beaverdam rather than infiltrating into the soil or Spring/Creek watershed (Bostick and draining naturally into surface water. Water Quantity Davis 2013, pers. comm.; Hill in litt. Pumping or diversion of springs Excessive groundwater extraction 2013). Sandel (2011, p. 11) observed creates unstable conditions for spring- from the aquifer supplying Beaverdam declines in the species’ population dependent species such as the spring Spring/Creek is a threat to the spring numbers and attributed it to pygmy sunfish through fluctuating pygmy sunfish (Drennen 2007–2011, sedimentation from two nearby water levels and temperature changes pers. observ.; NAWQA 2009a,b; Sandel construction activities: the construction (Williams and Etnier 1982, pp. 11–18; 2011, pp. 3–6) because of the reduction of a new sewer line adjacent to the Hubbs 1995, pp. 989–990; Kuhajda of the water levels in the aquifer and spring system and the ongoing 2004, pp. 59–63). The incremental and resultant decreased spring outflow construction of the Ashbury subdivision cumulative groundwater recharge effects (Williams and Etnier 1982, pp. 11–18; 2.3 mi (3.7 km) northeast of the species’ on the habitat of the spring pygmy Hubbs 1995, pp. 989–990; Kuhajda habitat. The Ashbury subdivision, sunfish may not become evident for 2004, pp. 59–63; Cook 2011, pers. adjacent to Moores Branch and draining years (Cooper 1993, pp. 402–406; Likens comm.). Sandel (in Kuhajda et al. 2009, into the upper Beaverdam Spring/Creek 2009, p. 90). Within north Alabama, the pp. 16, 19; 2011, pp. 3–6) documented watershed, filled adjacent wetlands availability of large quantities of a relationship between pumping when residential housing, roads, utility groundwater from springs has been an activities in Beaverdam Spring (Lowes crossings, and stormwater drains were important factor in industrial and urban Ditch) area, and Horton and Thorsen constructed (U.S. Army Corps of development (Warman and Causey Springs, and degraded spring pygmy Engineers 2011, pp. 1–6). 1963, p. 93). It is estimated that, by sunfish habitat. Even though Moss The City of Huntsville’s Master Plan 2015, the population in Limestone and Spring has never been directly pumped for Western Annexed Land (Sasaki Lauderdale Counties will increase (Sewell in litt. 2013), the water 2011, pp. 1–83) proposes developing a dramatically (Roop 2010, p. 1; Hill in extraction of the Beaverdam Spring area, total of 10,823 ac (4,379.9 ha) adjacent litt. 2013), along with expanding specifically at Lowes Ditch, may have to spring pygmy sunfish habitat. More urbanization and industrialization impacted Moss Spring water levels

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(Sandel 2011, pp. 6) and aquatic levels. Examples include the During 1999–2001, 35 pesticides and vegetation (Drennen pers observ. 2011). endangered Devil’s Hole pupfish volatile organic compounds such as In Thorsen Spring, during 2007, water (Cyprinodon diabolis) (Hoffman et al. tetrachloroethylene and was extracted to a level that, in 2003, p. 1248) and the endangered trichloroethylene were detected in wells conjunction with the drought, destroyed fountain darter (Etheostoma fonticola) and springs within the Lower Tennessee vital aquatic vegetation and decreased (U.S. Fish and Wildlife Service 1996, River Valley (Woodside et al. 2004. pp. the abundance of the spring pygmy p. 19). The whiteline topminnow 1–2). Increased toxic concentrations of sunfish by 99 percent (Sandel 2004– (Fundulus albolineatus) (Gilbert 1891), herbicides coupled with increased 2009, pers. observ.; Sandel 2011, p. 6). once endemic to Big Spring and Spring desiccation of aquatic vegetation due to The proximity of the spring pygmy Creek, in Huntsville, Madison County, drought (Jandebeur 2012c, pp. 1–6, 13) sunfish’s habitat to agricultural land was determined to be extinct in 1971, may have contributed to the demise of throughout its range makes it vulnerable due to over-pumping, cementing-over of the Pryor Spring/Branch population of to drought and associated impacts due streambank vegetation, and the spring pygmy sunfish. to the extraction of groundwater and impoundment of the spring pool The ongoing, intensive agricultural surface water for agricultural uses (Williams and Etnier 1982, pp. 10–11). practices and proposed urbanization (Cooper 1993, pp. 402–406). Sandel (in Severe or excessive water extraction, and industrialization plans (Bostick and Kuhajda et al. 2009, pp.16, 19) roughly along with drought in spring pygmy Davis 2013, pers. comm.; Hill in litt. estimated that up to 16,000 gpm (62,000 sunfish habitat, to the point that normal 2013) within the immediate area of the lpm) of water was extracted from the water levels may drop for a sustained watershed threaten to contaminate the Beaverdam Spring/Creek watershed for time period, can cause desiccation, groundwater in the aquifer supplying agricultural purposes during drought reduction, or change of essential aquatic the Beaverdam Spring/Creek system conditions during the 2008 growing vegetation necessary for the survival of (Healy 2010, p. 70). Along with volatile season. He further noted in the field that the species (Sandel 2011, p. 6). A organic compounds, general-use this level of withdrawal desiccated and reduction in water quantity also pesticides applied along road and power killed aquatic vegetation necessary for exacerbates the concentration of line rights-of-way in urban areas to the spawning, foraging, and shelter of pollutants that may have both an acute control woody vegetation and weeds the species. and a chronic negative impact on the (tebuthiuron and prometon) were Commercial water withdrawal from species and its habitat (Cooper 1993, pp. detected in wells in Lower Tennessee this same aquifer by the Limestone 402–406). River Valley aquifers between 1999– County pumping station, between 2006 The effects of water extraction on 2001 (Woodside et al. 2004, pp. 16–20). and 2011, was over 1 billion gallons (3.9 stream flow, in combination with Transportation of contaminants to the billion liters) at an estimated flow rate drought, may be greater due to the aquifer by recharge water can be slow of 450 gpm (1,740 lpm) (Holland 2011, overall decrease in water quantity in the and steady or highly episodic over time pers. comm.). Groundwater withdrawal stream. Decreased water levels, (Healy 2010, p. 75). by the cities of Huntsville and Madison following pumping from the spring Fertilizers and pesticides are (east of the spring pygmy sunfish pool, correspond to decreased aquatic transported to the aquifer by recharge, habitat), and the adjacent rural vegetation in the system. Less water or into surface stormwater routes, where population, is estimated at 16 million quantity increases the dessication of they eventually enter springs and are a gallons per day (62 million liters per vegetation, which may negatively threat to the survival of fishes found day) (Hoos and Woodside 2001, p. 1; impact the species (Jandebeur 1979, pp. there (Carson 1962, pp. 41–43; U.S. Fish Kingsbury 2003, p. 2; Hutson et al. 2005; 4–8; Mayden 1993, pp. 11–12) by and Wildlife Service 1996, pp. 35–36; Sandel 2007–2009, pers. comm.). reducing the vegetative cover and Hoffman et al. 2003, p. 1248). Toxins Withdrawal of groundwater by contributing to eutrophication of the can concentrate when spring flow is pumping, at high levels such as those water, as demonstrated by spring pygmy reduced, posing an even greater threat to above, especially during drought sunfish habitat impacts and subsequent spring fishes. The Beaverdam Spring/ conditions, can cause changes to water population declines in Horton and Creek watershed has the highest annual budgets (Healy 2010, p. 15) and the Thorsen Springs (Sandel 2004–2009. crop harvest, the highest total annual natural flow of spring systems (Alley in pers. observ.; 2011, pp. 3–6). Duncan nitrogen use, and second highest annual Likens 2009, p. 91). Pumping from wells et al. (2010, pp. 18–20) showed a phosphorus use, along with elevated beside streams also lowers groundwater correlatation between the abundance of pesticide usages detected in levels and reduces surface water flow the endangered watercress darter groundwater, within the Eastern within streams and spring runs. In (Etheostoma nuchale) in a similar Highland Rim (Kingsbury 2003, p. 20; smaller streams, decreased flow caused spring system in Jefferson County, NAWQA 2009a,b; Mooreland 2011, p. 2; by pumping can be large enough to Alabama, to the abundance and Cook et al. 2013, pp. 17–18). Both the create harmful effects upon the stream diversity of aquatic vegetation. historical and extant spring pygmy and its wildlife (Hunt 1999, pp. 98– sunfish populations in Limestone Water Quality 102). Water extraction by pumping also County (Beaverdam Spring/Creek, Pryor causes a loss of aquifer storage and The historical intensive use of Springs) are within the Wheeler Lake lowers the pressure in the aquifer (Theis chemicals within the Lower Tennessee Basin (southern boundary of Limestone 1935, p. 519), resulting in decreased River Valley in Alabama, including County), where Tsegaye et al. (2006, pp. spring flow velocity and quantity to agricultural areas close to the 175–176) found that rapid urbanization, adjacent streams. These reductions in Beaverdam Spring/Creek watershed and with associated decrease in agricultural the natural flow regime may adversely the recharge areas, may be a potential land cover, is likely responsible for affect the spring pygmy sunfish. threat to the species. Contaminant water quality degradation in streams In several large springs in the United transport occurring with sediment in from non-point source phosphorus States, groundwater extraction for surface stormwater runoff, or resulting pollution. Natural background levels of public consumption and agricultural from agricultural runoff, can enter the phosphorus in groundwater are use has impacted federally listed fish spring pool and spring run directly normally low (Wetzel 1983, p. 281; species by decreasing groundwater without first entering the groundwater. Cook et al. 2013, pp. 18). However,

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urbanization increases the amount of population in Pryor Branch after the spring environment. This vegetation is phosphorus from residential fertilizers application of 2, 4- important to maintaining a stable water and storm sewer drainage (Wetzel 1983, dichlorophenoxyacetic acid (2,4-D) to temperature and habitat for an p. 281) that may enter groundwater that area in the 1940s (Jandebeur 2012d, invertebrate prey base. Reducing shade recharge areas. Phosphorus limits pp. 1–18). This herbicide is toxic to fish by mechanical logging and clearing can biological productivity (Wetzel 1983, p. and aquatic invertebrates and has increase atypical spring flow, lead to 255) by impacting organismal properties and characteristics associated greater spring run flow variability, and metabolism. Nitrogen also impacts with chemicals generally detected in increase sedimentation (Erman 2002, p. aquatic life. For instance, un-ionized groundwater contamination. Decaying 9) by altering the existing ammonia (which contains nitrogen) is vegetation caused by the application of geomorphology and enhancing highly toxic to fish (Hoffman et al. 2003, this herbicide also impacts fishes by stormwater runoff. reducing dissolved oxygen levels p. 681). The planned housing and Conservation Efforts To Reduce Habitat (Environmental Protection Agency industrial development neighboring Destruction, Modification, or (EPA) Material Safety Data Sheet, spring pygmy sunfish habitat is likely to Curtailment of Its Range increase phosphorus and nitrogen levels undated, pp. 1–3). in the future. Surface water Many of the same chemicals used in When considering whether or not to contamination sources are typically large-scale agricultural practices are also list a species under the Act, we must nitrate (from fertilizer and animal used by municipal entities, including identify existing conservation efforts waste), bacteria, and urban runoff urban and rural households. Stormwater and their effect on the species. Under (runoff from yards and asphalt that has runoff from city streets, construction the Act and our policy implementing heavy metals and pesticides/herbicides). sites, and storm sewers; household this provision, known as the Policy for Ground water in karst areas is impacted wastes; and leachate from septic tanks Evaluation of Conservation Efforts by surface water with these same and landfills alter the sediment load in When Making Listing Decisions (PECE) contaminants (Tennessee Department of aquatic systems and deposit (68 FR 15100; March 28, 2003), we must Environment and Conservation 2012, p. contaminants into surface and evaluate the certainty of an effort’s 9; Cook et al. 2013, pp. 17–19). The groundwater sources (Likens 2009, p. effectiveness on the basis of whether the concentration of nitrate as nitrogen and 90). Water quality degradation from effort or plan: Establishes specific total phosphorus found in Beaverdam chemicals will increase with the conservation objectives; identifies the necessary steps to reduce threats or Spring was 2.77 mg/L, and 0.061 mg/L expected increase in urbanization and factors for decline; includes quantifiable respectively, four and 1.7 times above industrialization of the area. performance measures for the the upper limit for wildlife protection Overgrazing by livestock is a major threat to springs, especially where monitoring of compliance and (Cook et al. 2013, pp. 17–19). McGregor animals have free range through spring effectiveness; incorporates the et al. (2008, pp. 5–20) found that systems and wetlands. Cows tend to principles of adaptive management; is increased urbanization around congregate in wetland areas, where they likely to be implemented; and is likely Matthews and Bobcat Caves, about 8 mi consume and trample vegetation, to improve the species’ viability at the (12.9 km) east of Beaverdam Creek thereby reducing shade around the time of the listing determination. In watershed, will likely affect the ground spring and increasing the water general, in order to meet these standards water and population abundance of the temperature. Livestock also trample for the spring pygmy sunfish, federally endangered Alabama cave banks in springs and spring runs, conservation efforts must, at minimum, shrimp (Palaemonias alabamae). leading to increased stormwater and report data on existing populations, Specific aquatic plants, which the sediment runoff, which eliminates describe activities taken toward spring pygmy sunfish uses for habitat for invertebrate prey species conservation of the species, demonstrate spawning, shelter, and foraging, are also (Sada et al. 2001, pp. 14–16; Erman either through data collection or best impacted by indiscriminate use of 2002, p. 8). Excessive sediment runoff available science how these measures chemicals (Sandel 2011, pp. 1–5, 8–9; during stormwater events decreases will alleviate threats, provide for a Jandebeur 2012c, p. 2). Since 1945, water clarity, which reduces light mechanism to integrate new information herbicide usage, cattle grazing, and penetration needed for plant growth and (adaptive management), and provide irrigation have occurred throughout the results in impacts to the spring pygmy information regarding certainty of the spring systems and waterways that are sunfish’s spawning and feeding sites implementation (e.g., funding and habitat for this species (Jandebeur 1979, (NAWQA 2009a,b; Sandel 2011, pp. 1– staffing mechanisms). pp. 4–8). Aquatic vegetation 6, 8–9; Jandebeur 2012a, p. 2). The Service entered into a CCAA for management within Thorsen Spring, Timber harvesting and land clearing the benefit of the spring pygmy sunfish Horton Spring, and the Pryor Spring/ can also have impacts on spring water with Belle Mina Farms, Ltd., and the Branch system has removed the spring quality and associated spring species. Land Trust of Huntsville and North pygmy sunfish’s shelter vegetation, egg Recent tree removal along the boundary Alabama (Land Trust) on June 7, 2012. substrate, and food sites (Jandebeur of the Wheeler NWR, which is spring The area covered under the CCAA is 1979, pp. 4–8; Mayden 1993, p. 9; pygmy sunfish habitat and part of the approximately 3,200 ac (1,295 ha) and Jandebeur 2012d, p. 1–10). Agricultural Beaverdam Spring/Creek system, encompasses the upper 24 percent of chemical contamination results in highlights the need for careful habitat occupied by the Beaverdam sublethal toxic effects in fish species, management of spring habitats (Hurt Spring/Creek metapopulation, which is affecting the immune system, hormone 2012, pers. comm.). The removal of the currently the only known population for regulation, reproduction, and trees greatly reduced the buffer along the species. It also includes most of the developmental stages (Hoffman et al. the Beaverdam Spring/Creek system and spring recharge area (Cook et al. 2013, 2003, pp. 1056–1063, 1242). The spring will likely increase sedimentation into p. 44). Under the CCAA, the landowner pygmy sunfish’s negative response to the stream during stormwater runoff. An agrees to implement conservation herbicides (Hoffman et al. 2003, p. appropriate mixture of shade and measures to address known threats to 1242) is documented by the subsequent sunlight is needed for the proper growth the species. These measures will help reduction and eventual loss of the and maintenance of vegetation in the protect the species on his property in

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the near term and also minimize any may propose additional water use Summary of Factor A incidental take of the species that might management practices within the As discussed above, the spring pygmy occur as a result of conducting other enrolled land to maintain the status quo sunfish and its habitat are currently covered activities now that we are of historical water usage within the facing the threats of both declining listing the species under the Act. protected area. We have provided water quality and quantity. Excessive Conservation measures to be technical assistance to the landowners groundwater usage, and the resultant implemented by the landowner on this concerning conservation measures and reduction of the water levels in the property will assist in the reduction of BMPs for the surface portion of the aquifer/recharge areas and decreased chemical usage and stormwater runoff delineated recharge area. The Land spring outflow in the Beaverdam from agricultural fields by establishing Trust will conduct monitoring on the Spring/Creek system, is believed to have and maintaining vegetated buffer zones progress of the conservation actions and negatively impacted the spring pygmy around Moss and Beaverdam Springs. annual habitat analyses. Initial planning sunfish and its habitat. Contamination The landowner also agrees to restrict for species’ population and habitat of the recharge area and aquifer from the timber harvest and cattle grazing within monitoring has begun. intensive use of chemicals (i.e., the Beaverdam Spring/Creek and Moss The CCAA and associated herbicides, pesticides, and fertilizers) Spring habitats and to refrain from any enhancement of survival permit have a within the spring pygmy sunfish’s deforestation, industrial/residential duration of 20 years; however, under a habitat poses a threat to the species’ development, aquaculture, temporary or special provision of this CCAA, if at any survival. Ongoing stormwater discharge permanent ground water removal time a 15-percent decline in the status from agricultural lands and urban sites installations, and other potentially of the spring pygmy sunfish is compounds the water quality damaging actions without prior determined, there will be a reevaluation degradation by increasing sediment load consultation with the Service. These of the conservation measures set forth in and depositing contaminants into actions will minimize impacts and help the CCAA. If such a reevaluation reflects surface and groundwater sources. In to maintain groundwater recharge of the a need to change the conservation addition, the large-scale residential and aquifer and adequate spring flow. New measures, the amended measure(s) will industrial development planned information received from the GSA adjacent to the Beaverdam Spring/Creek (Cook et al. 2013, p. 3) identified the be implemented or the CCAA will be terminated and the permit surrendered. system will likely exacerbate the recharge area of the Beaverdam Spring, decreasing water quantity and quality Conservation efforts set forth in this which is about 1,088 ac (440.3 ha) and issues within the habitat of the spring CCAA are a positive step toward the described as wooded upland and pygmy sunfish’s single metapopulation. conservation of the spring pygmy agricultural fields. The majority (about Overgrazing by livestock and land sunfish. These conservation actions will 88.5 percent) of the delineated recharge clearing near and within the spring reduce the severity of some of the area is within the enacted CCAA as systems reduces the vegetation in the threats to the species (see discussion enrolled lands. This CCAA and spring and increases stormwater and above) within the upper portion of the corresponding conservation measures sediment runoff, posing a threat to the Beaverdam Spring/Creek and Moss that occur within the majority of the population, particularly in the middle Spring sites, which encompasses the recharge area (maintain status quo land and lower portions of its range. use as agriculture) will protect the upper 24 percent of occupied habitat in Based on our review of the best groundwater and spring system on the the Beaverdam Spring/Creek system. commercial and scientific data enrolled land (within Belle Mina Farms, Presently there is no active protection available, we conclude that the present Ltd.). The spring pygmy sunfish for the 19 percent of the species’ habitat or threatened destruction, modification, inhabits the designated protected area within the middle reach of the and curtailment of its habitat or range is within the CCAA. The species depends Beaverdam Spring/Creek system. currently a threat to the spring pygmy on the clean water from the recharge However, since early 2012, the Service sunfish and is expected to persist and area within the enrolled lands. There is has been working with two landowners possibly escalate in the future, longstanding agricultural usage by Bella to protect and manage this area for the particularly in light of the increasing Mina Farms, including cattle and spring pygmy sunfish, and we are demands for groundwater and large- irrigated cropland operations. Since currently in the process of negotiating scale development that is planned near 1983, Bella Mina Farms has been CCAAs with these landowners and this species’ habitat. While the CCAA cooperating with the Service in preparing them for public review and has reduced some of the threats under conserving and maintaining the comment. The lower portion of the this factor, it only covers a portion of integrity of species’ habitat in the species’ habitat (57 percent) is federally the extant range of the species, and will Beaverdam Spring/Creek system. Bella owned and protected, though it is not ameliorate all threats of ongoing and Mina Farms has created and maintained considered lower quality habitat. potential water quantity and water a buffer zone around the Moss Spring Despite these efforts, the large-scale quality degradation. Additional pond population of the spring pygmy development planned adjacent to this conservation measures being pursued sunfish and managed cattle consistent species’ habitat and outside the with key landowners and other with current grazing research, BMPs, boundaries of the land enrolled in the stakeholders would also aid in reducing and the spring pygmy sunfish’s ecology. current CCAA and the land potentially these threats to the species, but Through the CCAA, Bella Mina enrolled in the two proposed CCAAs likewise, not to the level that water Farms, Ltd., will continue to implement continues to pose a significant future quantity and quality degradation would the existing conservation efforts on the threat to the spring pygmy sunfish and cease to be threats to the species. enrolled land, as well as implement its habitat. Furthermore, since the Belle long-term strategies to protect the spring Mina Farms’ CCAA has been just Factor B. Overutilization for pygmy sunfish and its habitat within the recently executed, there has yet to be Commercial, Recreational, Scientific, or protected area. According to the CCAA, long-term monitoring, which is needed Educational Purposes if there is a 15-percent decline in the to evaluate the overall effectiveness of The spring pygmy sunfish is not a population of the species, the Service these efforts. commercially valuable species.

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However, this species has been actively adequate to protect this species due to common law (Chapman and U.S. Forest sought by researchers since its discovery inconsistent implementation, Service 2005, p. 10) provide minimal in 1937. Overcollecting may have been monitoring, and enforcement. overall protection for the species. a localized factor in the historical Furthermore, habitat degradation is Limited protection is provided to the decline of this species, particularly ongoing despite the protection afforded Beaverdam Spring/Creek watershed within the introduced population in by these laws. during any construction in the area from Pryor Spring/Branch (Jandebeur 2012d, The State of Alabama maintains Limestone County construction p. 14); however, the overall impact of water-use classifications through regulations (http:// collection on the spring pygmy sunfish issuance of National Pollutant Discharge www.limestonecounty-al.gov/PDFfiles/ population is unknown (Jandebeur Elimination System (NPDES) permits to Engineering/LimestoneCountySDRegs- 2012d, p. 14). The localized distribution industries, municipalities, and others; Complete.pdf). Specifically, the and small size of known populations these permits set maximum limits on regulations state that fill material may render them vulnerable to overzealous certain pollutants or pollutant not be used to raise land in a floodway recreational or scientific collecting. parameters. For water bodies on the that restricts the flow of water and However, at this time, we have no CWA’s section 303(d) List of Impaired increases flood heights, nor can land specific information indicating that Water Bodies, States are required under within a designated floodway be platted overcollection rises to the level to pose the CWA to establish a total maximum for residential occupancy or building a threat to the species now or in the daily load (TMDL) for the pollutants of sites (Limestone County, Alabama, future. concern that will bring water quality Subdivision Regulations section Therefore, we conclude that into the applicable standard. Many of 5–3–11(6)32). overutilization for commercial, the water bodies within the occupied Summary of Factor D recreational, scientific, or educational range of the spring pygmy sunfish do purposes does not constitute a threat to not meet Clean Water Act standards The spring pygmy sunfish and its the spring pygmy sunfish at this time. (Alabama 2008 section 303(d) List of habitat are afforded limited protection Impaired Water Bodies). from surface water quality and habitat Factor C. Disease or Predation The State of Alabama’s surface water degradation under Federal, State, and We have no specific information quality standards, adopted from the County regulations. Notwithstanding indicating that disease occurs within national standards set by the EPA, were this limited protection, large volumes of spring pygmy sunfish populations or established with the intent to protect all groundwater and surface water are poses a threat to the species. Eggs, aquatic resources within the State of continually extracted, and these juveniles, and adult spring pygmy Alabama. These water quality extractions may eventually threaten the sunfish are preyed upon by some regulations appear to be protective of aquifer that supplies water to spring invertebrate species, parasites, and the spring pygmy sunfish as long as pygmy sunfish habitat. Degradation of vertebrate species such as frogs, snakes, discharges are within permitted limits habitat within the current range of this turtles, other fish, and piscivorus (fish- and are enforced according to the species continues despite the eating) birds. It is possible that provisions of the CWA. Unregulated and protections afforded by these existing predation increases when fish are indiscriminate groundwater and surface laws. Therefore, based on the best concentrated in smaller areas when water extraction has been identified as scientific and commercial data groundwater is depleted through water a threat to spring species (see Factor A available, we conclude that existing extraction and drought. However, we discussion, above). Within the State of regulatory mechanisms are inadequate have no evidence of any specific Alabama, regulations concerning to reduce or eliminate the threats to the declines in the spring pygmy sunfish groundwater issues are limited spring pygmy sunfish. due to predation. (Alabama Law Review 1997, p. 1). Factor E. Other Natural or Manmade Therefore, we conclude that the best Alabama common law follows a Factors Affecting Its Continued scientific and commercial data available ‘‘reasonable use rule’’ for the extraction Existence indicate, at the present time, that of groundwater, and there is a statutory neither disease nor predation is a threat framework that regulates and governs Impediments to migration, to the spring pygmy sunfish. groundwater extraction (Chapman and connectivity, and gene flow between or U.S. Forest Service 2005, p. 9; Alabama within spring systems are threats to Factor D. The Inadequacy of Existing Water Resources Act, Code of Alabama, maintaining genetic diversity in the Regulatory Mechanisms sections 9–10B–1 et seq.). Water users spring pygmy sunfish. Habitat The spring pygmy sunfish and its must file a declaration of beneficial use, connectivity is critical to maintaining habitat are afforded some protection be issued a certificate of use, and be heterozygosity (genetic diversity) within from surface water quality and habitat permitted and monitored periodically. populations of the species and reducing degradation under the Clean Water Act The Alabama Water Commission can inbreeding, thereby maintaining the (CWA; 33 U.S.C. 1251 et seq.), the place restrictions on certificates of use integrity of the population (Hallerman Alabama Water Pollution Control Act in certain designated water capacity 2003, pp. 363–364). Connectivity of (Code of Alabama, sections 22–22–1 et stressed areas; however, the Alabama spring pygmy sunfish habitats is also seq.), and regulations promulgated by Water Commission has not identified necessary for improvement in desired the Alabama Department of any stressed groundwater areas in or aquatic vegetation, water quality Environmental Management (Maynard near spring pygmy sunfish habitat. through flushing and diluting pollutants and Gale 1995, pp. 20–28). While these Large volumes of groundwater continue and increasing water quantity, and laws have resulted in some to be extracted in areas not identified as linking spring segments together. improvement in water quality and ‘‘stressed groundwater areas’’ such as Connectivity maintains water flow stream habitat for aquatic life, such as the Beaverdam Spring/Creek watershed, between Beaverdam Spring/Creek requiring landowners engaged in and this likely depresses water levels in habitats and allows for potential agricultural practices to have an erosion nearby wells (Hairston et al. 1990, p. 7) colonization of unoccupied areas when prevention component within their farm and springs (Younger 2007, p. 162). conditions become favorable for the plan, alone they have not been fully Thus, water use restrictions under species and for the necessary aquatic

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vegetation needed by the species. 2007, p. 30; Solomon et al. 2007, pp. http://md.water.usgs.gov/publications/ Localized environmental changes 35–54, 82–85). wsp-2375/al; Seager et al. 2009, pp. caused by agriculture, urbanization, and Scientists use a variety of climate 5042–5043). Monthly normal other anthropogenic disturbances of the models, which include consideration of temperatures for 1981–2010 show an spring systems throughout the natural processes and variability, as increase by 1.8 °F and precipitation has watersheds of the Eastern Highland Rim well as various scenarios of potential decreased by 3.17 in per year (National have exacerbated fragmentation of levels and timing of greenhouse gas Weather Service Forecast Office, spring habitat (Sandel 2008, pp. 2–4, 13; (GHG) emissions, to evaluate the causes Huntsville, Alabama 2011, http:// 2011, pp. 3–6) and reduced the desired of changes already observed and to www.srh.noaa.gov/hun). vegetation necessary for the species’ project future changes in temperature Long-term droughts impact survival and recovery. Over time, this and other climate conditions (e.g., groundwater by increasing groundwater fragmentation of the spring pygmy Meehl et al. 2007, entire; Ganguly et al. extraction for public consumption and sunfish’s habitat will impose negative 2009, pp. 11555, 15558; Prinn et al. agriculture, which in turn do not selective pressures on the species’ 2011, pp. 527, 529). Although replenish surface waters (Likens 2009, populations, such as genetic isolation; projections of the magnitude and rate of p. 91). The assessment of long-term reduction of space for rearing, warming differ after about 2030, the impacts of projected changes in climate, recruitment, and reproduction; overall trajectory of all the projections is population, and land use and land cover reduction of adaptive capabilities; and one of increased global warming on regional water resources is critical to increased likelihood of local extinctions through the end of this century, even for sustainable development, especially in (Burkhead et al. 1997, pp. 397–399; the projections based on scenarios that the southeastern United States (Sun et Sandel 2011, pp. 8–10). The Tuscumbia assume that GHG emissions will al. 2008, pp. 1141–1157). Across the darter (E. tuscumbia), a species found in stabilize or decline. Thus, there is strong southern United States, changes in the Beaverdam Creek/Spring system that scientific support for projections that climate had the greatest impacts on also exhibits metapopulation dynamics, warming will continue through the 21st water stress, followed by population, has been impacted by fragmentation and century, and that the magnitude and and land use (Sun et al. 2008, pp. 1141– cessation of inter-spring migration rate of change will be influenced 1157). The prolonged drought within pathways, similar to the spring pygmy substantially by the extent of GHG northern Alabama during 2006 to 2008 sunfish (Fluker et al. 2007, pp. 6–8). emissions (IPCC 2007, pp. 44–45; Meehl was exceptional (Jandebeur 2012d, p. Impoundments (Pickwick Reservoir) et al. 2007, pp. 760–764 and 797–811; 13), and along with the severe drought now block both species’ migration Ganguly et al. 2009, pp. 15555–15558; of 1950 to 1963 (Jandebeur 2012d, p. pathways, and isolated populations Prinn et al. 2011, pp. 527, 529). 13), may have contributed to the demise Various changes in climate may have have experienced genetic bottlenecks of the Pryor Spring/Branch population direct or indirect effects on species. (the genetic variation within a of the spring pygmy sunfish in 2008, by These effects may be positive, neutral, population and the potential to adapt to increasing toxic concentrations of or negative, and they may change over a changing environment decrease) herbicides and by increasing the time, depending on the species and (Fluker et al. 2007, pp. 6–8). desiccation of aquatic vegetation. other relevant considerations, such as Climate Change interactions of climate with other Conservation Efforts To Reduce or variables (e.g., habitat fragmentation) Eliminate Other Natural or Manmade Our analyses under the Act include (IPCC 2007, pp. 8–14, 18–19). Factors Affecting Its Continued consideration of ongoing and projected While we do not have specific Existence changes in climate. The terms ‘‘climate’’ information concerning the effect of The signed CCAA with Belle Mina and ‘‘climate change’’ are defined by the climate change on spring pygmy sunfish Farms, Ltd. and the two proposed Intergovernmental Panel on Climate and its habitat, we do know that climate CCAAs, will likely reduce some of the Change (IPCC). The term ‘‘climate’’ affects groundwater budgets (inflow and threats to groundwater caused by refers to the mean and variability of outflow) by influencing precipitation climate change by minimizing impacts different types of weather conditions and evaporation and, therefore, the rates and helping to maintain groundwater over time, with 30 years being a typical and distribution of recharge of the recharge of the aquifer, protecting period for such measurements, although aquifer. Climate also affects human surface water flow, and limiting shorter or longer periods also may be demands for groundwater and affects groundwater extraction. Under the used (IPCC 2007, p. 78). The term plant transpiration from shallow signed CCAA, the Service will provide ‘‘climate change’’ thus refers to a change groundwater in response to solar energy technical assistance and groundwater in the mean or variability of one or more and changing depths to the water table management advice. Additionally, measures of climate (e.g., temperature or (Likens 2009, p. 91). Chronic regional adaptive management measures of this precipitation) that persists for an drought between 2000 and 2005 within CCAA concern groundwater usage, extended period, typically decades or the Tennessee Valley decreased rates of including pumping from the aquifer and longer, whether the change is due to surface water flow and aquifer recharge. avoidance of temporary or permanent natural variability, human activity, or Water extraction (both groundwater and groundwater removal installations. Also both (IPCC 2007, p. 78). surface water) during drought periods under this CCAA, the landowners will Scientific measurements spanning exacerbated damage to the spring pygmy not engage in practices, such as several decades demonstrate that sunfish and its habitat (Sandel 2009, p. pesticide and herbicide use, stock farm changes in climate are occurring, and 15). Even though aquifers in the region ponds, and aquaculture, within the that the rate of change has been faster are not depleted but are sometimes designated protected areas that may since the 1950s. Examples include seasonally low, especially during disturb water quality during low water warming of the global climate system, drought periods, drought has affected levels associated with drought periods. and substantial increases in Beaverdam Spring/Creek since records Similar conservation measures are precipitation in some regions of the were kept. The 1954 drought was more outlined in the two proposed CCAAs. world and decreases in other regions extreme than the 2007 drought (USGS The conservation measures in the (for these and other examples, see IPCC Water-Supply Paper 2375, pp. 163–170, signed and proposed CCAAs will help

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protect the species on these properties throughout the species’ range continues The Act defines an endangered in the near term and also minimize any despite the protections afforded by species as any species that is in danger incidental take of the species that might existing Federal and State laws and of extinction throughout all or a occur as a result of conducting other policies (Factor D). Habitat significant portion of its range, and a covered activities now that we are fragmentation and its resulting effects threatened species as one that is likely listing the species under the Act. on gene flow and potential demographic to become endangered within the However, because of anthropogenic impacts within the population is a foreseeable future throughout all or a factors such as urbanization or intensive threat (Factor E) that affects the spring significant portion of its range. We find agriculture, these conservation measures pygmy sunfish’s continued existence. that the spring pygmy sunfish is likely may be inadequate during drought These threats are rangewide and to become endangered throughout all or periods caused by climate change or expected to increase in the future. a significant portion of its range within other natural phenomena. The established Belle Mina Farms the foreseeable future, based on the immediacy, severity, and scope of the Summary of Factor E CCAA provides a measure of protection for the species in the upper reach of the ongoing threats, expected future threats, Habitat fragmentation and its population (24 percent of species’ and taking into considerations the resulting effects on gene flow and occupied habitat), with the protections afforded to the species by potential demographic impacts within implementation of conservation the Belle Mina Farms CCAA. Therefore, the population is a substantial threat to measures that increase or preserve water on the basis of the best available the spring pygmy sunfish. Increasing quantity, reduce water quality scientific and commercial data, we are drought associated with climate change degradation, and prohibit any listing the spring pygmy sunfish as affects groundwater budgets (inflow and potentially damaging land use actions in threatened in accordance with sections outflow) by influencing the rates and that area (Factor A). In addition, a 3(20) and 4(a)(1) of the Act. We find that distribution of recharge of the aquifer, portion of the recharge area for the endangered species status is not affects human demands for groundwater Beaverdam Spring/Creek is provided a appropriate for the spring pygmy and surface water, and affects plant measure of protection from impervious sunfish because: (1) Protections afforded transpiration from shallow groundwater substrate and excessive storm water by the CCAA help reduce some of the reserves. Based on the best available runoff under this CCAA since the 1,011 current threats to the species; and (2) scientific and commercial data, we ac of enrolled lands are to be many of the threats facing the species conclude that the spring pygmy sunfish from planned industrial and residential faces threats from other natural or maintained in their present condition, which is mostly agriculture. Currently, development are likely to occur in the manmade factors affecting its continued future. Therefore, the spring pygmy existence. These threats continue, even conservation measures or protection extends to the portion of the species’ sunfish is not in danger of extinction. though they are possibly lessened by the Under the Act and our implementing habitat currently enrolled in the CCAA beneficial effects of the signed CCAA regulations, a species may warrant (24 percent) and to the lower 57 percent and the two proposed CCAAs. listing if it is endangered or threatened of the habitat in Federal ownership throughout all or a significant portion of Determination within the Wheeler NWR (although its range. The threats to the survival of habitat here is of poorer quality). The We have carefully assessed the best the species occur throughout the scientific and commercial data available current CCAA and Federal ownership of species’ range and are not restricted to regarding the past, present, and future a portion of the habitat reduce many of any particular significant portion of that threats faced to the spring pygmy the threats (under Factors A and E) range. Accordingly, our assessment and sunfish. The identified threats to the within the immediate core of the determination applies to the species spring pygmy sunfish fall under Factors species’ current range; however, these throughout its entire range. A, D, and E, as described in more detail protections are not able to ameliorate all in the Summary of Factors Affecting the of the threats to the species and its Available Conservation Measures Species section, above. Habitat habitat, most notably impacts associated Conservation measures provided to modification (Factor A) is the primary with the large-scale industrial and species listed as endangered or threat to the species. This is due to residential development planned in the threatened species under the Act ongoing threats associated with ground area, which has potential to impact the include recognition, recovery actions, and surface water withdrawal and water hydrology and water quality of the requirements for Federal protection, and quality within the spring systems where spring system. prohibitions against certain practices. this species currently occurs and We note that the two proposed Recognition through listing results in historically occurred. In the future, CCAAs, if finalized, would provide public awareness and conservation by these current threats will likely be additional conservation benefit to the Federal, State, Tribal, and local coupled with impacts from planned species in the middle portion of its agencies; private organizations; and urban and industrial development of range. However, we have determined individuals. The Act encourages land adjacent to spring pygmy sunfish that the additional conservation actions cooperation with the States and requires habitat and the resultant impacts to the in the proposed CCAAs do not remove that recovery actions be carried out for spring system and surrounding aquifer the threats to the species and its habitat all listed species. The protection recharge area. We find that this planned to the point that listing is not necessary, required by Federal agencies and the increase in urban and industrial especially when considering probable prohibitions against certain activities development and associated and potential impacts from planned are discussed, in part, below. infrastructure, along with the potential residential and industrial development The primary purpose of the Act is the unsustainable use of the area, is a threat (Factor A). Therefore, the possible final conservation of endangered and to the spring pygmy sunfish, with the approval of the proposed CCAAs threatened species and the ecosystems potential to exacerbate direct mortality following the public comment period upon which they depend. The ultimate as well as permanent loss, would not change our determination to goal of such conservation efforts is the fragmentation, or alteration of its list the spring pygmy sunfish as a recovery of these listed species, so that habitat. The degradation of habitat threatened species. they no longer need the protective

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measures of the Act. Subsection 4(f) of Maintenance of vegetation buffer zones Federal agency actions within the the Act requires the Service to develop along the springs; (2) prohibition of species’ habitat that may require and implement recovery plans for the cattle within the spring; (3) prohibition consultation as described in the conservation of endangered and of deforestation, land clearing, preceding paragraph include threatened species. The recovery industrial development, residential management and any other landscape- planning process involves the development, aquaculture, temporary or altering activities on Federal Lands identification of actions that are permanent ground water removal administered by the U.S. Fish and necessary to halt or reverse the species’ installations, stocked farm ponds, Wildlife Service. Federal activities that decline by addressing the threats to its pesticide and herbicide use, and may affect spring pygmy sunfish, survival and recovery. The goal of this impervious surface installation within include, but are not limited to: The process is to restore listed species to a the protected area of the CCAA; and (4) carrying out, funding, or the issuance of point where they are secure, self- establishment of a biological monitoring permits for discharging fill material on sustaining, and functioning components program for the spring pygmy sunfish wetlands for road or highway of their ecosystems. and its habitat. Similar conservation construction; installation of utility Recovery planning includes the actions are outlined in the two proposed easements; development of residential, development of a recovery outline CCAAs. industrial, and commercial facilities; shortly after a species is listed and When this species is listed (see channeling or other stream geomorphic preparation of a draft and final recovery DATES), funding for recovery actions will changes; discharge of contaminated or plan. The recovery outline guides the be available from a variety of sources, sediment-laden waters; wastewater immediate implementation of urgent including Federal budgets, State facility development; and excessive recovery actions and describes the programs, and cost share grants for non- groundwater and surface water process to be used to develop a recovery Federal landowners, the academic extraction. plan. Revisions of the plan may be done community, and nongovernmental The Act and its implementing to address continuing or new threats to organizations. In addition, under section regulations set forth a series of general the species, as new substantive 6 of the Act, the State of Alabama will prohibitions and exceptions that apply information becomes available. The be eligible for Federal funds to to all endangered wildlife. The recovery plan identifies site-specific implement management actions that prohibitions of section 9(a)(1) of the Act, management actions that set a trigger for promote the protection and recovery of and its implementing regulations at 50 review of the five factors that control the spring pygmy sunfish. Information CFR 17.21, make it illegal for any person whether a species remains endangered on our grant programs that are available subject to the jurisdiction of the United or may be downlisted or delisted, and to aid species recovery can be found at: States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, methods for monitoring recovery http://www.fws.gov/grants. progress. Recovery plans also establish trap, capture, or collect, or to attempt Please let us know if you are a framework for agencies to coordinate any of these), import, export, ship in interested in participating in recovery their recovery efforts and provide interstate commerce in the course of estimates of the cost of implementing efforts for the spring pygmy sunfish. commercial activity, or sell or offer for recovery tasks. Recovery teams Additionally, we invite you to submit sale in interstate or foreign commerce (comprised of species experts, Federal any new information on this species any listed species. The regulations at 50 and State agencies, nongovernment whenever it becomes available and any CFR 17.31 extend the prohibitions listed organizations, and stakeholders) are information you may have for recovery above to threatened species, with often established to develop recovery planning purposes (see FOR FURTHER certain exceptions. Under the Lacey Act plans. When completed, the draft and INFORMATION CONTACT). (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), final recovery plans will be available on Section 7(a) of the Act requires it is also illegal to possess, sell, deliver, our Web site (http://www.fws.gov/ Federal agencies to evaluate their carry, transport, or ship any such endangered) or from our Mississippi actions with respect to any species that wildlife that has been taken illegally. Ecological Services Field Office (see is proposed or listed as endangered or Certain exceptions apply to agents of the ADDRESSES). threatened and with respect to its Service and State conservation agencies. Implementation of recovery actions critical habitat, if any is designated. We may issue permits to carry out generally requires the participation of a Regulations implementing this otherwise prohibited activities broad range of partners, including other interagency cooperation provision of the involving endangered and threatened Federal agencies, States, Tribal, Act are codified at 50 CFR part 402. wildlife species under certain nongovernmental organizations, Section 7(a)(4) of the Act requires circumstances. Regulations governing businesses, and private landowners. Federal agencies to confer with the permits are codified at 50 CFR 17.22 for Examples of recovery actions include Service on any action that is likely to endangered species, and at 17.32 for habitat restoration (e.g., restoration of jeopardize the continued existence of a threatened species. With regard to native vegetation), research, captive species proposed for listing or result in endangered wildlife, a permit must be propagation and reintroduction, and destruction or adverse modification of issued for take for the following outreach and education. The recovery of proposed critical habitat. If a species is purposes: For scientific purposes, to many listed species cannot be listed subsequently, section 7(a)(2) of enhance the propagation or survival of accomplished solely on Federal lands the Act requires Federal agencies to the species, and for incidental take in because their range may occur primarily ensure that activities they authorize, connection with otherwise lawful or solely on non-Federal lands. To fund, or carry out are not likely to activities. achieve recovery of these species jeopardize the continued existence of It is our policy, as published in the requires cooperative conservation efforts the species or destroy or adversely Federal Register on July 1, 1994 (59 FR on private, State, and Tribal lands. modify its critical habitat. If a Federal 34272), to identify, to the maximum The CCAA between the Service, Belle action may affect a listed species or its extent practicable at the time a species Mina Farms Ltd., and the Land Trust critical habitat, the responsible Federal is listed, those activities that would or identifies several strategies that will agency must enter into formal would not constitute a violation of support recovery efforts, including: (1) consultation with the Service. section 9 of the Act. The intent of this

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policy is to increase public awareness of regarding prohibitions and permits may time for the public to review and the effect of a listing on proposed and be addressed to the U.S. Fish and comment on the two proposed CCAAs. ongoing activities within the range of Wildlife Service, Endangered Species Required Determinations the listed species. The following Permits, 1875 Century Blvd. NE., activities could potentially result in a Atlanta, GA 30345 (telephone 404–679– National Environmental Policy Act violation of section 9 of the Act; this list 7313; facsimile 404–679–7081). We have determined that is not comprehensive: Under section 4(d) of the Act, the environmental assessments and (1) Unauthorized collecting, handling, Secretary has discretion to issue such environmental impact statements, as possessing, selling, delivering, carrying, regulations as she deems necessary and defined under the authority of the or transporting of the species, including advisable to provide for the National Environmental Policy Act (42 import or export across State lines and conservation of threatened species. Our U.S.C. 4321 et seq.), need not be international boundaries, except for implementing regulations (50 CFR prepared in connection with listing a properly documented antique 17.31) for threatened wildlife generally species as an endangered or threatened specimens of these taxa at least 100 incorporate the prohibitions of section 9 species under the Act. We published a years old, as defined by section 10(h)(1) of the Act for endangered wildlife, notice outlining our reasons for this of the Act; except when a ‘‘special rule’’ determination in the Federal Register (2) Introduction of species that promulgated pursuant to section 4(d) of on October 25, 1983 (48 FR 49244). compete with or prey upon the spring the Act has been issued with respect to pygmy sunfish; a particular threatened species. In such References Cited (3) The unauthorized release of a case, the general prohibitions in 50 A complete list of all references cited biological control agents that attack this CFR 17.31 would not apply to that in this rule is available on the Internet species’ habitat or any of its life stages; species, and instead, the special rule at http://www.regulations.gov or upon (4) Unauthorized modification of the would define the specific take request from the Field Supervisor, vegetation composition or hydrology, or prohibitions and exceptions that would Mississippi Ecological Services Field violation of any discharge or water apply for that particular threatened Office (see FOR FURTHER INFORMATION withdrawal permit that results in harm species, which we consider necessary CONTACT). or death to any individuals of this and advisable to conserve the species. species or that results in degradation of The Secretary also has the discretion to Authors its occupied habitat to an extent that prohibit by regulation with respect to a The primary authors of this final rule essential behaviors such as breeding, threatened species any act prohibited by are the staff members of the Mississippi feeding, and sheltering are impaired; section 9(a)(1) of the Act. Exercising this Ecological Services Field Office. (5) Unauthorized destruction or discretion, which has been delegated to alteration of the species’ habitat (such as the Service by the Secretary, the Service List of Subjects in 50 CFR Part 17 channelization, dredging, sloping, has developed general prohibitions that Endangered and threatened species, removing of substrate, or discharge of are appropriate for most threatened Exports, Imports, Reporting and fill material) that impairs essential species in 50 CFR 17.31 and exceptions recordkeeping requirements, behaviors, such as breeding, feeding, or to those prohibitions in 50 CFR 17.32. Transportation. sheltering, or that results in killing or We are not promulgating a section 4(d) injuring spring pygmy sunfish; and special rule at this time, and as a result, Regulation Promulgation (6) Unauthorized discharges or all of the section 9 prohibitions, Accordingly, we amend part 17, dumping of toxic chemicals or other including the ‘‘take’’ prohibitions, will subchapter B of chapter I, title 50 of the pollutants into the aquifer directly apply to the spring pygmy sunfish. Code of Federal Regulations, as follows: through wells or into the spring system or indirectly into recharge areas Rationale for a 60-Day Effective Date PART 17—[AMENDED] supporting spring pygmy sunfish that We have published a notice of kills or injures the species or that availability in the Federal Register for ■ 1. The authority citation for part 17 otherwise impairs essential life- public review and comment on the two continues to read as follows: sustaining requirements, such as proposed CCAAs, associated permit Authority: 16 U.S.C. 1361–1407; 1531– breeding, feeding, or sheltering applications and draft environmental 1544; 4201–4245, unless otherwise noted. (destruction of vegetation and action statements. It is our intention to ■ 2. Amend § 17.11(h) by adding an substrate). make a final determination on the entry for ‘‘Sunfish, spring pygmy’’ to the Questions regarding whether specific proposed CCAAs before this rule List of Endangered and Threatened activities would constitute a violation of becomes effective; however, we are not Wildlife in alphabetical order under section 9 of the Act should be directed certain that this can be accomplished FISHES to read as follows: to the Mississippi Ecological Services within 30 days after the issuance of this Field Office (see FOR FURTHER rule. Therefore, the effective date of the § 17.11 Endangered and threatened INFORMATION CONTACT). Requests for rule is 60 days from the publication date wildlife. copies of the regulations concerning of this final rule (see DATES), rather than * * * * * listed animals and general inquiries our typical 30 days, to provide adequate (h) * * *

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Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* FISHES

******* Sunfish, spring Elassoma alabamae U.S.A. (AL) ...... Entire ...... T 827 NA NA. pygmy.

*******

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

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