Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23377

DEPARTMENT OF THE INTERIOR yellowish-cream. Irregular spacing of not found on exposed limestone dorsal pigments and pigment gaps surfaces or in silted areas (Sweet 1978; Fish and Wildlife Service results in a mottled, ‘‘salt and pepper’’ Dr. Charles Sexton, City of Austin, in pattern (Sweet 1978, Chippindale et al. litt., 1992; Chippindale et al. 1993a,b; 50 CFR Part 17 1993a). Jim Collett, Robert Hansen, and Mateo RIN 1018±AC22 The Barton Springs salamander was Scoggins, City of Austin, pers. comms., first collected from Barton Springs Pool 1994–1995; Lisa O’Donnell, U.S. Fish Endangered and Threatened Wildlife in 1946 by Bryce Brown and Alvin and Wildlife Service (USFWS), pers. and Plants; Final Rule To List the Flury (Chippindale et al. 1993a,b). obs., 1996). Barton Springs Salamander as Although he did not publish a formal ‘‘Dozens or hundreds’’ of individuals Endangered description, Dr. Samuel Sweet were estimated to occur among sunken (University of California at Santa leaves in Eliza Pool during the 1970’s AGENCY: Fish and Wildlife Service, Barbara) was the first to recognize the (Chippindale et al. 1993a,b), while Interior. Barton Springs salamander as distinct fewer than 15, and occasionally no ACTION: Final rule. from other central Texas Eurycea individuals, were observed during salamanders based on its restricted surveys conducted in Eliza Pool SUMMARY: The Fish and Wildlife Service distribution and unique morphological between 1987 and 1992 (Chippindale et (Service) determines the Barton Springs and skeletal characteristics (such as its al. 1993a,b). No salamanders were salamander (Eurycea sosorum) to be an reduced eyes, elongate limbs, dorsal observed at this location between endangered species pursuant to the coloration, and reduced number of December 1993 and May 1995 (Paul Endangered Species Act of 1973, as presacral vertebrae) (Sweet 1978, 1984). Chippindale, University of Texas at amended (Act). The Barton Springs Based on Sweet’s work and genetic Arlington, Collett, Hansen, and salamander is known only from Barton studies conducted by Chippindale et al. Scoggins; pers. comms., 1994–1995; Springs in Zilker Park, Austin, Travis (1990, 1992, 1993b), the Barton Springs Hansen in litt. 1995b). Numbers ranged County, Texas. The primary threats to salamander was formally described in from 0 to 28 between June 1995 and July this species are degradation of the June 1993 (Chippindale et al. 1993a). 1996, and dead salamanders have been quality and quantity of water that feeds An adult male (based on external found (O’Donnell, unpubl. data, 1995– Barton Springs due to urban expansion examination only) collected from Barton 1996). over the Barton Springs watershed. Also Springs Pool in November 1992 was The Barton Springs salamander was of concern is disturbance to the selected to be the holotype (Chippindale reportedly abundant among the aquatic salamander’s surface habitat in the et al. 1993a). vegetation in the deep end of Barton pools where it occurs. This action The water that discharges at Barton Springs Pool when it was collected in implements Federal protection provided Springs originates from the Barton 1946 (Hillis and Chippindale 1992; by the Act for the Barton Springs Springs segment of the Edwards aquifer Chippindale et al. 1993a,b). Between salamander. (hereafter referred to as the ‘‘Barton 1989 and 1991, Sexton (in litt., 1992) EFFECTIVE DATE: May 30, 1997. Springs segment’’). Barton Springs is the reported finding salamanders under ADDRESSES: The complete file for this fourth largest spring in Texas, exceeded rock rubble immediately adjacent to the rule is available for inspection, by only by Comal, San Marcos, and San main spring outflows on ‘‘about one out appointment, during normal business Felipe springs (Brune 1981). The Barton of four [snorkeling] dives.’’ On July 28, hours at the Ecological Services Field Springs salamander is found near three 1992, at least 50 salamanders (David Office, U.S. Fish and Wildlife Service, of four hydrologically connected spring Hillis, University of Texas at Austin, 10711 Burnet Road, Suite 200, Austin, outlets that collectively make up Barton pers. comm., 1993) were found over an Texas 78758. Springs. These three spring outlets are area of roughly 400 square (sq) m (4,300 known as Parthenia (=Main), Eliza sq ft) near the spring outflows in Barton FOR FURTHER INFORMATION CONTACT: Lisa (=Concession, =Elk’s), and Sunken Springs Pool, about 3 to 5 m (10 to 15 O’Donnell, Fish and Wildlife Biologist Garden (=Old Mill, =Walsh) springs, ft) below the water (Chippindale et al. (see ADDRESSES section) (telephone: and they occur in Zilker Park, which is 1993a,b). Following reports of a fish kill 512/490–0057; facsimile (512/490- owned and operated by the City of on September 28, 1992, attributed to the 0974)). Austin. No salamanders have been improper application of chlorine to SUPPLEMENTARY INFORMATION: found at the fourth spring outlet, which clean Barton Springs Pool, only 10 to 11 is in Barton Creek immediately above salamanders were observed and could Background Barton Springs Pool (Chippindale et al. only be found in an area of about 5 sq The Service determines the Barton 1993a,b; Sweet, pers. comm., 1993; m (54 sq ft) in the immediate vicinity of Springs salamander (Eurycea sosorum) Robert Hansen, City of Austin, in litt., the Parthenia Spring outflows to be an endangered species, under the 1995a; William Russell, Texas (Chippindale et al. 1993a,b). At least 80 authority of the Endangered Species Act Speleological Survey, in litt. 1995). The individuals were observed during the (Act) (16 U.S.C. 1531 et seq.). The area around the main spring outlet first comprehensive survey effort Barton Springs salamander is entirely (Parthenia Springs) was impounded in conducted in Barton Springs Pool on aquatic and neotenic (meaning it does the late 1920’s to create Barton Springs November 16, 1992, and about 150 not metamorphose into a terrestrial form Pool. Flows from Eliza and Sunken individuals were seen on November 24, and retains its bright red external gills Garden springs are also retained by 1992 (Chippindale et al. 1993a,b). A throughout life) and depends on a concrete structures, forming small pools comprehensive survey conducted constant supply of clean, flowing water located on either side of Barton Springs immediately following an October 1994 from Barton Springs. Adults attain an Pool. The salamander has been observed flood event reported a total of 16 average length of 6.35 centimeters (cm) at depths of about 0.1 to 5 meters (m) salamanders, and a total of 10 (2.5 inches (in)). This species is slender, (0.3 to 16 feet (ft)) of water under gravel salamanders was counted in March with slightly elongate limbs and and small rocks, submerged leaves, and 1995 (Hansen, in litt. 1995c). reduced eyes. Dorsal coloration varies algae; among aquatic vegetation; and The City of Austin initiated monthly from pale purplish-brown or gray to buried in organic debris. It is generally transect surveys in June 1993 to provide 23378 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations more consistent data concerning the Texas at Austin, pers. comm., 1993; Previous Federal Action range and size of the Barton Springs Hillis and Chippindale 1992; The Barton Springs salamander was a salamander population in Barton Chippindale et al. 1993a,b). Primary Category 2 candidate species on the Springs Pool. Survey counts ranged predators of the Barton Springs Service’s candidate notices of review from 1 to 27 individuals (mean = 13) salamander are believed to be fish and from December 30, 1982 (47 FR 58454; between July 1993 and March 1995. The crayfish (Chippindale et al. 1993a,b; September 18, 1985: 50 FR 37958; highest survey counts (27 individuals) Collett, Hansen, and Scoggins, pers. January 6, 1989: 54 FR 554; and were reported in November 1993 and comms., 1995). Observations of larvae November 21, 1991: 56 FR 58804) until May 1994. The lowest counts (ranging and females with eggs indicate breeding publication of the proposed rule to list from 1 to 6 individuals) occurred during occurs year-round (Chippindale, pers. the species as endangered (59 FR 7968; a five-month period following the comm., 1993; Collett, Hansen, and February 17, 1994). Dr. Mark October 1994 flood event (Hansen, in Scoggins, pers. comms., 1994–1995). Kirkpatrick and Ms. Barbara Mahler litt. 1995c). Survey counts between The Barton Springs salamander’s eggs petitioned the Service to list the Barton April 1995 and April 1996 ranged from are white (Lynn Ables and Streett Coale, Springs salamander on January 22, 3 to 45 salamanders (City of Austin, Dallas Aquarium; Jim Dwyer, Midwest 1992, and on December 11, 1992 (57 FR unpubl. data). Science Center; pers. comms., 1996) and 58779), the Service published a notice The salamander was first observed at have never been observed in the wild in the Federal Register that the petition Sunken Garden Springs on January 12, (Chippindale, Hillis, and Price, pers. presented substantial information that 1993 (Chippindale et al. 1993b). Less comms. 1993; Collett, Hansen, and the requested action may be warranted. than 20 individuals have been reported Scoggins, pers. comms., 1994–1995; A proposed rule to list the Barton on any given visit to that outlet O’Donnell, pers. obs., 1995–1996). (Chippindale 1993b; Hansen, pers. Springs salamander was published in comm., 1995). Because it is part of the The Barton Springs segment covers the Federal Register on February 17, Barton Springs complex and is roughly 400 sq kilometers (km) (155 sq 1994 (59 FR 7968). The Service held a hydrologically connected to Parthenia miles (mi)) from southern Travis County public hearing on June 16, 1994, in Springs, biologists had speculated that to northern Hays County, Texas, and has Austin, Texas (59 FR 27257). On March the salamander occurred at Sunken a storage capacity of over 37,000 10, 1995, the Service published a notice Garden Springs. However, no hectare-meters (300,000 acre-feet) (Slade extending the 1-year deadline for final salamanders were observed during et al. 1985, 1986). The watersheds of the action on the proposed rule until previous surveys conducted at this six creeks upstream (west) of the August 17, 1995, and reopened the location between 1987 and 1992. Low recharge zone span about 684 sq km public comment period (60 FR 13105). water levels and the presence of large (264 sq mi). This area is referred to as On April 10, 1995, Congress enacted rocks and sediment make searching for the contributing zone and includes a moratorium prohibiting work on salamanders difficult at Sunken Garden portions of Travis, Hays, and Blanco listing actions (Public Law 104–6) and Springs (Chippindale et al. 1993b; counties. The recharge and contributing eliminated funding for the Service to conduct final listing actions. On O’Donnell, pers. obs., 1995). zones (hereafter referred to collectively November 27, 1995, in response to a No evidence exists that the species’ as the ’’Barton Springs watershed’’) lawsuit from the Save Our Springs Legal range extends beyond the immediate make up the total area that provides Defense Fund (Save Our Springs Legal vicinity of Barton Springs. Despite water to the aquifer, which equals about Defense Fund, Inc., et al. v. Bruce survey efforts and searches at other 917 sq km (354 sq mi). A detailed Babbitt), a U.S. District Court spring outlets, caves, and uncased wells description of the Barton Springs invalidated the Service’s March 10, in the Barton Springs segment, no other segment of the Edwards aquifer can be 1995, notice of extension and ruled that locations of the Barton Springs found in the Service’s February 17, the Service had to make a final salamander have been found 1994, proposed rule (59 FR 7968). determination on whether or not to list (Chippindale et al. 1993a,b; Russell, in Porous limestone, karst aquifers, such as litt. 1995; Russell 1996; Hillis; Andy the Barton Springs salamander within the Barton springs segment may 14 days of the court order. The court Price, Texas Parks and Wildlife transport pollutants rapidly once such Department; Sweet; pers. comms., 1993; granted a stay pending the Service’s materials enter the creeks or other appeal of the order, on the grounds that Hansen, in litt. 1995a). No other species recharge features (EPA 1990, TWC 1989, of Eurycea is known to occur in this the moratorium and lack of funding Slade et al.1986, Ford and Williams prohibited the Service from making a portion of the aquifer. Although the 1994, Notenboom et al. 1994) extent to which the Barton Springs final listing determination. The salamander occurs in the aquifer is Because of the characteristics of karst moratorium was lifted on April 26, unknown, it is likely concentrated near aquifers, Barton Springs is believed to 1996, by means of a Presidential waiver, the spring openings where food supplies be heavily influenced by the quality and at which time limited funding for listing are abundant, water chemistry and quantity of runoff, particularly in the actions was made available through the temperatures are relatively constant, recharge zone (City of Austin 1991; Omnibus Appropriations Act (Pub. L. and where the salamander has Slade et al. 1986). Thus, increasing No. 104–134, 100 Stat. 1321, 1996). The immediate access to both surface and urban development over the area Service published guidance for subsurface habitats. Barton Springs is supplying recharge waters to the Barton restarting the listing period on May 16, also the main discharge point for the Springs segment can threaten water 1996 (61 FR 24722). Due to the potential entire Barton Springs segment, and is quality within the aquifer. The Texas for new information during the lapse one of the few perennial springs in the Water Commission (now known as the between the reinstatement of the listing area. Texas Natural Resource Conservation program and the close of the last 45-day The Barton Springs salamander’s diet Commission (TNRCC)) identified the comment period (May 17, 1995), the is believed to consist almost entirely of Edwards aquifer as being one of the Service reopened the public comment amphipods (Hyallela azteca) and other most sensitive aquifers in Texas to period on June 24, 1996, for 30 days. small invertebrates (James Reddell, groundwater pollution (TWC 1989; Hart, That comment period closed July 10, Texas Memorial Museum, University of in litt., 1991; TNRCC 1994). 1996, by U.S. District Court order. Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23379

On September 4, 1996 (61 FR 46608), Summary of Comments and increasing levels of pollutants in the the Service withdrew the proposed rule Recommendations groundwater; the Service should to list the Barton Springs salamander as In the February 17, 1994, proposed provide further explanation as to why endangered based on a conservation rule (59 FR 7968) and associated the Barton Springs salamander is agreement signed by the Service and the Federal Register notices, including restricted to Barton Springs; and TNRCC, Texas Parks and Wildlife notification of a public hearing (59 FR increased nutrient levels should not Department (TPWD), and Texas 27257; May 26, 1994) and each of the affect dissolved oxygen concentrations Department of Transportation (TxDOT) five comment periods (February 17 to in the aquifer. The peer reviewers’ on August 13, 1996. The goal of the April 18, 1994 (59 FR 7968); May 26 to comments are reflected in this final rule. Barton Springs Salamander July 1, 1994 (59 FR 27257; May 26, Written and oral comments are Conservation Agreement and Strategy 1994); July 8 to July 29, 1994 (59 FR incorporated into this final rule where (Agreement) is to continue existing and 35089; July 8, 1994); March 10 to May appropriate. Comments not initiate new management actions to 17, 1995 (60 FR 13105; March 10, 1995); incorporated are addressed in the protect the Barton Springs ecosystem and June 24 to July 10, 1996 (61 FR following summary. Comments of a and its watershed. The Agreement is 32413; June 24, 1996)), all interested similar nature or point are grouped and administered by the Barton Springs parties were requested to submit factual summarized. Where differing Salamander Conservation Team reports or information to be considered viewpoints on an issue were expressed, (BSSCT), which includes in making a final listing determination. the Service briefly summarizes the representatives from each of the four Appropriate Federal and State agencies, general issue. signatory agencies. In deciding to local governments, scientific 1. Comment: Several commenters withdraw the proposed listing rule, the organizations, and other interested questioned whether information Service found that the Agreement, by parties were contacted and asked to regarding threats to the Barton Springs protecting water quality at Barton comment. Legal notices of the public salamander is adequate to support a Springs and in the Barton Springs hearing, which invited general public listing decision. Some commenters segment of the Edwards aquifer and by comment were published in the stated that threats to the salamander are conserving water quantity, reduces the Dripping Springs Century News and greater now than ever before. threats to the species to the point where Austin-American Statesman on June 8, Service Response: Section 4(a)(1) of listing is no longer warranted. 1994, in the Drippings Springs Dispatch the Act states that species shall be listed On March 25, 1997, the U.S. District on June 9, 1994, and in the Austin as threatened or endangered provided Court for the Western District of Texas Chronicle on June 10, 1994. The Service that the continued existence of the found the Service’s withdrawal invalid received 657 written and oral species is threatened by one or more of and ordered the Service to make a comments, 8 videotapes, 5 petitions, the five factors discussed below in the listing determination within 30 days. and 2 resolutions from individuals and ‘‘Summary of Factors Affecting the The court ordered the Service to ignore agencies. Of the 657 comments, 524 Species’’ section of this rule. Under the Agreement in making the new supported the proposed action, 123 section 4(b)(1), the Service must make decision. On April 8, 1997, the Service opposed it, and 10 stated neither its listing decisions based on the best requested the court to delay the due support nor opposition. Four petitions scientific and commercial data date for the new listing decision until totaling over 1,800 signatures and one available. The Service has met these July 23, 1997, so that the Service could resolution from the City of Austin requirements in this listing decision. reopen the comment period and supported listing, and one petition Over 50 percent of the water used by consider information developed since containing 29 signatures and one Texans comes from groundwater. The July 10, 1996, when the comment period resolution from the City of Dripping Barton Springs watershed provides the on the proposed listing closed. The Springs opposed the listing. sole source of drinking water for more court denied this request on April 15, A public hearing was held in two than 35,000 people living over the 1997. The Service is therefore not able sessions on June 16, 1994, at the Lyndon aquifer and contributes a significant to consider the following information in Baines Johnson Auditorium at the supply of water to the Colorado River, making a final listing determination: (1) University of Texas at Austin. Over 160 which is the primary source of drinking The Agreement and the BSSCT’s efforts people attended the public hearing, and water for the City of Austin. In addition to implement it, including public and 74 provided oral testimony. to providing a reliable supply of safe technical input given as part of the The Service solicited formal scientific drinking water that requires little or no BSSCT’s March 1, 1997 public peer review of the proposal from six treatment, many people depend on the workshop; (2) updated salamander individuals during the March 10 to May Barton Springs watershed for other survey results; (3) the City of Austin’s 17, 1995, comment period and received needs, including agriculture and revised pool maintenance procedures comments from three reviewers. The recreational activities. designed to reduce salamander major comments from these peer Amphibians are known to be very mortality; (4) the discovery of a new reviewers are: the Barton Springs sensitive to environmental salamander location upstream from the salamander is a distinct species contaminants (see Factor E below). Barton Springs Pool; (5) two additional restricted to Barton Springs; the Because the Barton Springs salamander ovipositioning events at the Dallas salamander appears to be primarily a lives at the main discharge point for the Aquarium; (6) reinstatement of the Save surface-dwelling species that retreats aquifer and is continuously exposed to Our Springs (SOS) ordinance; (7) the underground during unfavorable the waters emanating from it, it is a Barton Creek Watershed Protection conditions (such as drought) and to lay primary indicator of the health of this Initiative with private landowners and eggs; the salamander is vulnerable to natural resource. As an important the Nature Conservancy of Texas; and declining water quality and quantity indicator species, the Barton Springs (8) and adoption of TNRCC’s chapters and other forms of habitat modification; salamander serves as an early warning 313 and 216 of the Texas Administrative regulations are inadequate to protect the sign of deteriorating water quality and Code (see discussion under Factor D Barton Springs salamander; the Service quantity in the Barton Springs below). should present more data that show watershed, which affects the health and 23380 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations well-being of the human population that considered in recovering listed species. 8. Comment: The Service received depends on this resource. By Federal Register notice on July 1, several comments regarding whether 2. Comment: The Service received 1994 (59 FR 34272), the Secretaries of critical habitat should be designated for comments questioning the sensitivity of Interior and Commerce set forth an the Barton Springs salamander. the Barton Springs salamander to interagency policy to minimize social Service Response: Critical habitat has changes in water quality and quantity, and economic impacts consistent with not been proposed for the Barton and asserting that since the salamander timely recovery of listed species. Thus, Springs salamander (see Critical Habitat has survived past impacts, it appears to it is the Service’s desire that any section below). The Act requires that be hardy and resilient and able to recovery actions associated with the critical habitat be designated for a withstand future impacts. Barton Springs salamander minimize species at the time it is listed unless Service Response: Although the adverse social and economic impacts to designation is not prudent or not Barton Springs salamander has survived the extent practicable. determinable. Listing regulations at 50 past impacts, only 4 to 6 percent of the 5. Comment: The Service received CFR 424.12(a)(1) provide that critical Barton Springs watershed is currently several comments on the status of the habitat is not prudent if no benefit to the developed, and development is Barton Springs salamander’s population species is derived from its designation. expected to continue. Furthermore, size, stating that this information should Designation of critical habitat benefits a although the species as a whole has be considered in making a listing listed species only when adverse persisted to date, survey information determination. modification or destruction of critical indicates that individual salamanders Service Response: Data from monthly habitat could occur without the survival have not survived certain impacts, and surveys of the Barton Springs and recovery of the species also being the species and its prey base are salamander are presented in the jeopardized. Because the Barton Springs vulnerable to changes in water quality Background section and Factor A of this salamander is restricted to one area that and quantity (see Factors A and E final rule. These survey data further discharges water from the entire Barton below). As discussed in Factor E, the support the need for listing. Although it Springs watershed, any action that difficulty in maintaining and may be an important listing would result in adverse modification or propagating the Barton Springs consideration, the absolute population destruction of the salamander’s critical salamander in captivity provides further size does not need to be declining to habitat would also jeopardize its evidence that this species is sensitive to warrant listing under the Act. continued survival and recovery. environmental change. Toxicity data for 6. Comment: The Service received Designating critical habitat would the salamander’s primary food source, several comments regarding whether the therefore not provide a benefit to the Hyallela azteca, demonstrate the Barton Springs salamander is restricted species beyond the benefits already sensitivity of that amphipod to to Barton Springs. provided by listing and subsequent contaminants. Service Response: Survey information evaluation of activities under the 3. Comment: Several people of other springs, caves, and wells in the jeopardy standard of section 7 of the commented on the adequacy of the Barton Springs segment provided since Act. Because jeopardy to the species and existing rules and regulations in publication of the proposed rule further adverse modification of its critical protecting water quality and quantity in substantiate that the Barton Springs habitat are indistinguishable, the the Barton Springs watershed. One salamander’s range is limited to the Service has determined that designation commenter specifically mentioned that, immediate vicinity of Barton Springs of critical habitat for the Barton Springs because only two oil pipeline spills (see Background). Because Sunken salamander is not prudent. have been recorded (see Factor A), Garden Springs is part of the Barton 9. Comment: A few commenters regulations are apparently adequate to Springs complex and scientists assumed questioned whether the Barton Springs protect water quality. that the Barton Springs salamander salamander represents a distinct Service Response: The Act states that occurred there, the presence of species. species shall be listed based on one or salamanders at this spring outlet does Service Response: The Barton Springs more of the five factors discussed in this not indicate that the salamander’s range salamander was first recognized as a final rule. The Service’s analysis of the has expanded, as some commenters distinct species in the 1970’s (see inadequacy of existing regulatory asserted. Background). A formal description of mechanisms (Factor D) demonstrates 7. Comment: Many people questioned the salamander was peer-reviewed and that additional measures are needed to whether recreational use of Barton published in June 1993 (Chippindale et protect the Barton Springs salamander Springs Pool is likely to impact the al. 1993a). Although the Barton Springs from extinction. Although certain rules Barton Springs salamander. salamander may bear some and regulations provide some water Service Response: The Service morphological resemblance to other quality and quantity benefits, they do recognizes that swimming is a Eurycea salamander species, differences not alleviate all of the identified threats compatible activity with conservation of in its morphology, its isolation from to the Barton Springs salamander. the salamander. The Service has other Eurycea populations, and genetic 4. Comment: Several inquiries were provided additional discussion on research provide sufficient evidence to made regarding possible effects of recreation related issues in Factor E support its designation as a distinct listing the Barton Springs salamander (‘‘Other natural or manmade factors species. on land use in the Barton Springs affecting its continued existence’’) of 10. Comment: The Service received watershed and whether listing would this final rule. The Service comments questioning whether a infringe on private property rights. acknowledges in both the proposed and relationship exists between increasing Other comments discussed possible final rules that certain pool maintenance urbanization and declining water economic impacts and benefits from practices may impact the Barton Springs quality and quantity. listing. salamander, and that the City of Austin Service Response: A discussion of the Service Response: While economic is continuing to seek solutions that relationship between increasing effects, private property rights, and benefit both the recreational aspect of urbanization and declining water related concerns, cannot be considered Barton Springs Pool and the Barton quality and quantity is presented in in listing decisions, such factors are Springs salamander (see Factor A). Factor A of this final rule. Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23381

11. Comment: Some commenters Resource Conservation Commission, studies or reports specific to Barton questioned whether reduced aquifer Barton Springs/Edwards Aquifer Springs, Austin, or even the Edwards levels and encroachment of the bad Conservation District, and the City of aquifer, but instead describe general water line constitute threats to the Austin in preparing the proposed and nationwide or statewide environmental Barton Springs salamander. final rules, and provided written management issues. These are general Service Response: A discussion of this notifications to these agencies of the 90- policy documents, which do not address issue is presented in Factor A. Under day finding and proposed rule. the circumstances faced by the Barton the 1996 pumping and drought regime, The Available Conservation Measures Springs salamander. springflows at Barton Springs reached section of this final rule identifies Service Response: Most of the reports historically low levels, and both Eliza specific activities that will not be and documents cited in this final rule Pool and Sunken Garden Springs affected by section 9 of the Act specifically address the effects of drained completely dry during regarding ‘‘take’’ of the Barton Springs urbanization on surface and drawdown of Barton Springs Pool. salamander, and provides guidance and groundwater, karst aquifers, the Barton Barton Springs is located near the bad recommendations for avoiding impacts Springs watershed, the Barton Springs water line, and encroachment of bad to the salamander. The recovery plan salamander, and/or the salamander’s water to the springs has occurred will be drafted to minimize social and primary food source, and thus are historically under low flow conditions. economic impacts while ensuring the pertinent to evaluating threats to the During periods of low flows, Sunken long-term survival and recovery of the Barton Springs salamander. The Garden Springs measures high levels of Barton Springs salamander. Protecting information presented in these reports is total dissolved solids, indicating bad the ecosystem upon which the highly consistent with respect to the water encroachment. salamander and people depend will be threat of urbanization on water Factor A also presents information on an important component in recovery resources. the increasing number of new permitted planning. 16. Comment: The Service cites a wells in the Barton Springs segment and 13. Comment: The Service refuses to 1986 study by Slade et al. that projected a discussion of groundwater pumpage. acknowledge the benefits of existing a doubling of water demands from the A substantial increase in groundwater regulations. The Service’s unwillingness year 1982 to 2000. Since we are more withdrawals (compounded by drought) to enforce its own limited and than halfway through the 18-year time will increase the frequency, severity, inadequate requirements further period, are more recent data available? and/or duration of low aquifer levels contributes to the endangered status of Service Response: The estimated total and springflows and the potential for the Barton Springs salamander. pumpage in 1982 was 470 hectare- movement of the bad water line toward Service Response: As stated in the meters (3,800 acre-feet), at which time Barton Springs. Increased pumpage may proposed rule, the Service discharge from the Barton Springs also increase leakage from the lower acknowledges that the existing rules and segment (withdrawal plus springflow) Trinity aquifer, which contains higher regulations provide some benefits to was determined to be roughly equal to levels of total dissolved solids and water quality and quantity. However, recharge. Slade et al. (1986) predicted fluoride than water in the Barton the purpose of Factor D is to evaluate that a substantial increase in Springs segment, thus further lowering the inadequacies of existing regulatory groundwater withdrawal (compounded water quality. mechanisms. The Service hopes that by drought) would cause a decrease in 12. Comment: The Fish and Wildlife this evaluation will assist in identifying the quantity of water in the aquifer and Service needs to implement its new measures to strengthen efforts to protect discharge from Barton Springs. The directives from the Department of water quality and quantity in the Barton Barton Springs/Edwards Aquifer Interior and Commerce, including Springs watershed and to promote the Conservation District estimated total scientific peer review, minimization of long-term survival of the Barton Springs pumpage for 1994 at 570 hectare-meters social and economic impacts, greater salamander. (4,600 acre-feet). However, as stated in predictability, the ecosystem approach, 14. Comment: The Service must Factor A, the exact volume of water that and State agency involvement. consider spill response programs is pumped from the aquifer is difficult Service Response: The Service has designed to remediate the to estimate, since meter reports are not followed its policy directives in contamination of groundwater resources required for non-permitted wells. preparing this final rule. During the by hazardous substance and hazardous Furthermore, groundwater pumpage reopening of the public comment period waste releases. varies considerably from year to year, following the notice to extend the final Service Response: The Service is influenced primarily by the amount of listing decision (60 FR 13105; March 10, unaware of any concerted, organized rainfall. The volume of pumpage 1995), the Service formally solicited effort among the various Federal, State, increases and its effects on aquifer peer review from six independent and local agencies to implement a levels and springflows become more specialists to evaluate the information contingency plan for emergency spills pronounced during dry spells, whereas presented in the proposed rule. The in the Barton Springs watershed. Also, periods of high rainfall can mask the beginning of this section (‘‘Summary of efforts to restore contaminated effects of increased dependence on Comments and Recommendations’’) groundwater to its original purity may groundwater supplies. summarizes the opinions of the three be technologically infeasible and/or 17. Comment: There appears to be no individuals who provided peer review. cost-prohibitive (see Factor A). Spill direct, quantifiable relationship between Informal peer review was also solicited remediation is especially problematic water quality in Barton Creek and water during the public hearing and each for catastrophic spills that occur in quality at Barton Springs. public comment period, during which proximity to Barton Springs or in areas Service Response: The Background the Service received over 650 letters of that are difficult to access. Because section and Factor A of this final rule comment. The Service solicited remediation is not always effective or discuss the hydrologic regime of the information and expertise from Federal, possible, prevention is needed to ensure Barton Springs watershed. The surface State, and local agencies, including the the protection of water resources. and groundwaters of the Barton Springs U.S. Geological Survey, Texas Parks and 15. Comment: Many of the references watershed are integrally related, and all Wildlife Department, Texas Natural cited in the proposed rule are not of the six creeks that cross the recharge 23382 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations zone of the aquifer affect water quality watershed. A report prepared for the roadways can be considered to be at Barton Springs. Because of the karst City of Austin (1995) examines options transportation routes for hazardous characteristics of the aquifer and for retrofitting developments to improve materials. Because Loop 360 supports a because Barton Springs is the main stormwater quality in the Barton high volume of traffic, and many service discharge point for the entire watershed, Springs watershed. stations exist in this part of the Austin pollutants entering the watershed from 19. Comment: The proposed rule did area, it is considered to be a major any of the recharge sources may not discuss other sources of water transportation route. The Service’s eventually reach Barton Springs. The contributing to flows from Barton statement is also supported by the USGS has clearly demonstrated that Springs, including the San Antonio Hazardous Materials Water water quality in Barton Creek has the segment of the Edwards aquifer and the Contamination Risk study prepared for most immediate impact on water quality Colorado River. the City of Austin (1994). at Barton Springs of any recharge source Service Response: Independent 22. Comment: Both Hays County and in the Barton Springs watershed because studies (Slade et al. 1985, 1986; Stein Dripping Springs experienced high rates of its recharge contribution and 1995) conclude that most of the water of growth in the 1980’s, yet are still proximity to Barton Springs. Data show discharging from Barton Springs sparsely populated. The Service’s that contaminants in Barton Creek can originates from within the Barton statement in the proposed rule suggests enter the aquifer near Barton Springs Springs watershed (see Background these areas will soon be overrun with and discharge from the springs within section). However, under low flow people at intensely urbanized levels, hours or days of storm events. conditions, the bad water zone of the which is an unrealistic assumption. 18. Comment: The waters from the San Antonio segment appears to flow Service Response: The Service quoted outlying areas of the contributing zone northward toward Barton Springs. a study (see Factor A) conducted by the are not the cause of current degradation Upward leakage from the lower Trinity Capital Area Planning Council. and will never significantly contribute aquifer may also infiltrate the Barton Additional information on population to the degradation of the springs Springs segment during low flows. growth for the northern portion of Hays compared to the existing development Because these aquifers are high in total County is presented in this final rule. around Barton Springs. Many existing dissolved solids, their contribution 23. Comment: More of the recharge land uses were constructed and affects the quality of water in the Barton and contributing zones have been operated under less stringent standards. Springs watershed and at Barton developed than the Service states in the Retrofitting existing development would Springs. proposed rule. Based on an analysis of result in far more improvement of water The Service is unaware of any reports historical trends in land development quality than would further restriction of or data indicating that the Colorado for the recharge zone of the Barton new development. River contributes water to the Barton Springs segment, approximately 1,200 Service Response: The Service Springs watershed. However, Barton hectares (ha) (3,050 acres (ac)) in the acknowledges that there is a Springs does supply baseflow to the recharge zone had been developed in relationship between current water Colorado River, which may be 1979. Approximately 3,000 ha (7,500 ac) quality and quantity degradation and substantial during dry periods. had been developed by 1993, which existing development and considers 20. Comment: The Service must represents approximately 13 percent of retrofitting of these developments to be comply with the National the entire recharge zone of the Barton an important factor in protecting Barton Environmental Policy Act (NEPA) prior Springs segment. Springs. However, water quality at to listing the Barton Springs salamander Service Response: Factor A of the Barton Springs is also influenced by the as endangered. This would require the proposed rule states that ‘‘* * * only quality and quantity of water Service to study the social and about 3 to 4 percent of the recharge and throughout the entire watershed (see environmental impacts of the proposed contributing zones is currently Background and Factor A). Although listing and prepare appropriate developed,’’ which was based on an water quality at Barton Springs environmental documentation. estimate of impervious cover provided responds most rapidly to changes in Service Response: The Service has by the USGS. A report prepared for the water quality in Barton Creek, Barton determined that Environmental City of Austin (1995) has estimated Springs represents a mixture of all of the Assessments and Environmental Impact impervious cover over the Barton recharge waters in the Barton Springs Statements, as defined under the Springs watershed to be 6 percent (see watershed. High-quality water in the authority of the National Environmental Factor A). Assuming that the undeveloped portions of the Barton Policy Act of 1969, need not be commenter’s calculations of Springs watershed helps disperse and prepared in connection with regulations development are also equal to the dilute pollutants from the urbanized adopted pursuant to section 4(a) of the amount of impervious cover, the areas. Because of the karst Endangered Species Act of 1973, as commenter’s assertion that about 13 characteristics of the aquifer, pollution amended. A notice outlining the percent of the recharge zone is can originate from anywhere within the Service’s reasons for this determination developed does not appear to be Barton Springs watershed, especially was published in the Federal Register inconsistent with the estimated 3 to 6 pollutants that are relatively stable and on October 25, 1983 (48 FR 49244). percent impervious cover for the entire mobile in water. Thus, as urbanization 21. Comment: The statement that watershed. expands across the watershed, the ‘‘Loop 360 provides a major route for 24. Comment: What evidence exists ability of the aquifer to dilute and transportation of petroleum and that demonstrates that sediments disperse increasing pollutant loads will gasoline products to service stations in entering the pools where the salamander decrease. While the Service concurs that the Austin area’’ is unsupported by any occurs actually settle in the retrofitting of existing development near data or citation of a study. What is the salamander’s habitat? Barton Springs may be important to basis of this statement? Service Response: Biologists with the protect water quality, measures are also Service Response: This statement was City of Austin have found that silt and needed to ensure continued protection based on the fact that no designated sediments that are hosed from the of water quality and quantity hazardous materials routes exist for the shallow end into the deep end of Barton throughout the remainder of the Austin area, and thus all major Springs Pool during cleaning reduce the Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23383 amount of available salamander habitat. 27. Comment: The occurrence of ‘‘contaminants that adsorb to the surface Increased sediment influxes following turbidity, accumulation of sediments, of sediments may be transported major rain events also reduce habitat and contaminants in Barton Springs through the aquifer and later be released availability. Sediments cover much of watershed could be due to natural back into the water column ’’? the bottom of Eliza Pool and Sunken phenomena. Service Response: The Service based Garden Springs, and the Barton Springs Service Response: The volume of this statement on information presented salamander is typically found in silt-free sediments observed in urbanizing in Schueler (1987), which states that areas near the spring outlets. portions of the Barton Springs once deposited, pollutants in ‘‘enriched 25. Comment: A significant number of watershed and increased turbidity sediments can be remobilized under references cited in the proposed rule are during periods of major construction suitable environmental conditions not peer-reviewed scientific indicate that such activities influence posing a risk to benthic life’’ (see Factor publications and thus should not be these phenomena. As discussed in A). given the same level of credibility as Factor A, the relationship between 30. Comment: The Service received a those having a more rigorous review and urban runoff and increased erosion and comment letter that contained a approval process. sedimentation is well documented. document comparing the findings and Service Response: All official agency Increases in turbidity tend to coincide conclusions of the proposed rule with reports cited in the proposed rule have with land clearing and construction those made in a report by the Aquatic undergone extensive internal review, activities, and discharge of turbid runoff Biological Advisory Team (ABAT), and some have solicited outside peer from construction projects has been which concluded that insufficient review. Articles cited from scientific observed entering receiving waters in information appears to exist to support journals have all received formal peer the Barton Springs watershed. a listing decision. Research shows that the contaminants Service Response: The City of Austin review. Although the Service relies discussed in Factor A (including and Texas Parks and Wildlife primarily on final documents in making elevated levels of nutrients, heavy Department formed the ABAT, which listing decisions, the best available metals, petroleum hydrocarbons, and consisted of five nationally recognized information may also come from other pesticides) are primarily associated with specialists, to make research and sources such as written correspondence, urban runoff. The Service is unaware of management recommendations needed factual information and data from draft any natural sources in the Barton to conserve the Barton Springs and Bull documents, expert opinions, and Springs watershed that could result in Creek watersheds and their resident personal communications. The Service significant concentrations (or any salamander populations (the Barton strives to evaluate the accuracy of this detectable concentrations for manmade Springs and Jollyville Plateau ‘‘gray literature’’ before considering it in compounds such as pesticides) of these salamanders). The ABAT members were making a listing decision. contaminants in water. specifically instructed not to make 26. Comment: Several individuals 28. Comment: A report by T.U. Taylor recommendations regarding listing nor commented on the methods and results (in litt. 1922) states that elevated levels to evaluate specific laws or regulations. of certain reports used by the Service in of fecal coliform bacteria have been The Service believes that substantial the proposed rule, including three documented at Barton Springs since evidence exists to support a listing USGS reports (Slade et al. 1985, 1986; 1922. However, the Service stated in the determination for the Barton Springs Veenhuis and Slade 1990) and a Barton proposed rule that the City of Austin salamander, but also recognizes that Springs/Edwards Aquifer Conservation determined that the method used to additional research is important to assist District (BS/EACD) report (Hauwert and measure bacterial counts at the time of in making sound management Vickers 1994). The Service was also the report is different from that used recommendations. The Service concurs criticized for not making available for today, and thus ‘‘the bacterial counts are with most of the ABAT’s management public review and comment the raw not directly comparable to * ** recommendations, which could be data upon which these and other reports current sampling techniques’’ (Austin incorporated into a regional cited by the Service are based. Librach, City of Austin, in litt., 1991). management plan for the Barton Springs Service Response: The reports cited in The City of Austin’s review of the report watershed, as well as a recovery plan for the proposed rule and in this final rule does not provide a basis for refuting its the Barton Springs salamander. present sufficient information and data conclusions or excluding them from 31. Comment: The TNRCC and needed to review and assess the further consideration. The comparison TxDOT provided information regarding methodologies used by the investigators, of fecal coliform counts taken in the existing and proposed rules and their study results and data analyses, context of the standards of the time, to regulations, which they state are and conclusions. The Service has counts taken today and in the context of adequate to protect the Barton Springs reviewed these reports and determined today’s standards, is a valid comparison. salamander. that the data were gathered and Service Response: To date, the Service Service Response: An evaluation of analyzed in accordance with sound has only been provided a copy of a the existing rules and regulations is scientific principles, and accepts these cover letter (dated August 28, 1922) to provided in Factor D of this final rule. reports as valid and relevant scientific a supplementary report submitted by The Service encourages State and local information. Furthermore, the results Mr. Taylor to the City of Austin. The entities to identify proposed regulations and conclusions of independent studies letter states the need to filter Barton and additional protective measures that consistently show similar trends Springs water for human consumption can serve as a basis for a regional regarding impacts of urbanization on due to contamination with ‘‘B. coli.’’ management plan for the Barton Springs water quality and quantity. The USGS Because no report accompanied the watershed. and BS/EACD have both provided letter, and the Service has been unable written responses to the criticisms of to obtain a copy of the report, the Summary of Factors Affecting the their reports (Raymond Slade, USGS, in Service can draw no further conclusions Species litt. 1994; Nico Hauwert, BS/EACD in regarding its findings. After thorough review and litt. 1995; Bill Couch, BS/EACD, in litt. 29. Comment: What is the basis for consideration of all information 1996). the Service’s statement that available, the Service has determined 23384 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations that the Barton Springs salamander Urbanization introduces many Groundwater Protection Committee should be classified as an endangered pollutants into an area, including (TGPC) 1995). The BS/EACD found species. Procedures found at section 4 of suspended solids, nutrients, petroleum elevated levels of sediment, fecal-group the Act and regulations implementing hydrocarbons, bacteria, heavy metals, bacteria, trace metals, nutrients, and the listing provisions of the Act (50 CFR volatile organic compounds, fertilizers, petroleum hydrocarbons in certain part 424) were followed. A species may and pesticides (TWC 1989; EPA 1990; springs and wells between Sunset be determined to be endangered or Schueler 1991; Notenboom et al. 1994; Valley and Barton Springs (Hauwert and threatened due to one or more of the Menzer and Nelson 1980). Stormwater Vickers 1994, TGPC 1994). Slade et al. five factors described in section 4(a)(1). runoff is a primary source of water (1986) reported that levels of fecal-group These factors and their application to pollution. Pollutant loadings in bacteria, nitrate nitrogen, and turbidity the Barton Springs salamander (Eurycea receiving waters, particularly in areas were highest in wells near creeks sosorum Chippendale, Price, and Hillis) that have little or no pollution controls, draining developed areas. In addition to are as follows: generally increase with increasing sediments and bacteria, A. The present or threatened impervious cover (Schueler 1991). A tetrachloroethene, a commonly used destruction, modification, or report by the USGS on the relationship drycleaning solvent, has been detected curtailment of its habitat or range. The between urbanization and water quality in water samples from Barton Springs primary threat to the Barton Springs in streams throughout the Austin area (9 (Slade 1991). Possible sources of salamander is degradation of the quality of 18 sample sites were along streams in groundwater contamination include and quantity of water that feeds Barton the Barton Springs segment and its urban runoff, construction activities, Springs resulting from urban expansion contributing zone) demonstrated leaking septic tanks and pipelines, and over the Barton Springs watershed statistically significant increases in petroleum storage tank releases (Slade et (including roadway, residential, constituent concentrations with al. 1986; TWC 1989; EPA 1990; Hauwert commercial, and industrial increasing impervious cover (Veenhuis and Vickers 1994). development). A discussion of some and Slade 1990). Degradation of water One of the most immediate threats to potential effects of contaminants on the quality in the Barton Springs watershed the Barton Springs salamander is salamander and its prey base is also evidenced by algal blooms, siltation of its habitat, owing primarily (amphipods) is provided in this section erosion, trash and debris, and to construction activities in the Barton and under Factor E. Potential factors accumulations of sediments and toxics Creek watershed (Slade et al. 1986, City contributing to declining water quality (City of Austin 1995). of Austin 1991, Hauwert and Vickers and quantity in this portion of the Water quality in the aquifer and at 1994, TGPC 1994). Major highway, Edwards aquifer include chronic Barton Springs is directly affected by subdivision, and other construction degradation, catastrophic hazardous the quality of water in the six creeks projects along Barton Creek increased material spills and increased water that cross the recharge zone (see during the early 1980’s and 1990’s. withdrawals from the aquifer. Also of Background section). Of these creeks, While high turbidity has been observed concern are impacts to the salamander’s water quality at Barton Springs in Barton Springs Pool following major surface habitat. responds most rapidly to changes in storm events since the early 1980’s Urbanization can dramatically alter water quality in Barton Creek (Slade et (Slade et al. 1986; Hauwert 1995), the the normal hydrologic regime and water al. 1986; City of Austin 1991). Data duration and frequency of sediment quality of an area. As areas are cleared show that contaminants in Barton Creek discharges from Barton Springs of natural vegetation and topsoil and can enter the aquifer near Barton increased substantially during the replaced with impervious cover (paved Springs and discharge from the springs 1990’s (Hauwert 1995; TGPC 1994). surfaces), rainfall no longer percolates within hours or days of storm events Barton Springs discharged large through the ground but instead is (Slade et al. 1986; City of Austin 1991). amounts of sediments following most rapidly converted to surface runoff. Because groundwater originating from major rain events in 1993, 1994 Creekflow shifts from predominantly Barton Creek remains in the aquifer for (Hauwert and Vickers 1994; TGPC baseflow, which is derived from natural short periods before discharging at the 1994), and 1995 (Collett, pers. comms., filtration processes and discharges from springs, there is little time for 1994–1995). Sediments have been local groundwater supplies, to attenuation of pollutants before observed emanating directly from the predominantly stormwater runoff. The discharging at Barton Springs (Slade et spring outlets in Barton Springs Pool amount of stormwater runoff tends to al. 1986; City of Austin 1991). Increases (Doyle Mosier, Lower Colorado River increase in direct proportion to the in turbidity (a measure of suspended Authority; Debbie Dorsey, City of amount of impervious cover. With solids or sediment), algal growth, Austin; pers. comms., 1993; Collett and increasing stormflows, the amount of nutrients, and fecal-group bacteria have Hansen, pers. comms., 1994–1995) baseflow available to sustain water been documented along Barton Creek about 8 to 12 hours following the start supplies during drought cycles is between SH 71 and Loop 360 and at of a heavy rain (Slade et al. 1986; City diminished and the frequency and Barton Springs, and have been largely of Austin 1991; Hauwert and Vickers severity of flooding increases. The attributed to construction activities and 1994; David Johns, City of Austin, pers. increased amount and velocity of runoff the conveyance and treatment of sewage comm. 1996). increases erosion and streambank in this area (Slade et al. 1986; Austin Several uncased wells in the Barton destabilization, which in turn leads to Librach, City of Austin in litt., 1990; Creek watershed, one of which is increased sediment loadings, channel City of Austin 1991, 1993; Barbara located 5 km (3 mi) south of Barton widening, and changes in the Britton, TWC, in litt., 1992). Springs near the Loop 360 bridge, have morphology and aquatic ecology of the Water quality in the more heavily been completely filled with a cream- affected creek (Schueler 1991). developed areas of the Barton Springs colored, carbonate silt (up to 45 m (150 Sediment from soil erosion is ‘‘by segment and at Barton Springs is also ft)) (Hauwert and Vickers 1994). A well volume the greatest single pollutant of beginning to show signs of degradation in Sunset Valley measured 1 to 1.5 ft surface waters and is the potential (Slade et al. 1986; Librach in litt., 1990; accumulations of cream-colored carrier of most pollutants found in City of Austin 1991, 1993; Slade 1992; sediment over an eight-month period water’’ (Menzer and Nelson 1980). Hauwert and Vickers 1994; Texas prior to July 1993, and reportedly Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23385 caused the well pump to seize (Hauwert most sensitive organism of those tested discharges, highway runoff, and sewage and Vickers 1994). Several well owners, (Phipps et al. 1995; Burton and Ingersoll effluent (Pain 1995). drillers, and operators also reported a 1994). Most polycyclic aromatic Aquatic organisms may absorb lead significant influx of sediments during hydrocarbons (PAHs), a component of through skin, gills, intestines, and other 1993, particularly during periods of oil, are associated with sediments in organs, and may ingest lead through heavy rainfall and low water-level aquatic ecosystems, which may be feeding (Pain 1995). Lead conditions (Hauwert and Vickers 1994). ingested by benthic organisms (Eisler concentrations tend to be highest in Studies have shown that high levels 1987). Hyallela azteca has been shown benthic organisms, which may of suspended solids reduce the diversity to assimilate PAHs from contaminated assimilate lead directly from sediments and density of aquatic fauna (EPA 1986; sediments (Eisler 1987). Sediments (Eisler 1988a). Research indicates that Barrett et al. 1995). In Barton Springs collected from the main stem of Barton lead is not essential or beneficial to Pool, the lowest recorded population Creek on November 21, 1994, about 150 living organisms, and that all known counts of the salamander (ranging from m above Barton Springs Pool, contained effects are deleterious, including those 1 to 6 individuals) occurred over the several PAHs that were 2.5 to 22 times on survival, growth, reproduction, five-month period following an October the levels shown to always have a toxic development, behavior, learning, and 1994 flood event (see Background effect (survival, growth, or maturation) metabolism (Eisler 1988a; Pain 1995). section). The flood deposited a large on Hyallela azteca (City of Austin, Adverse effects increase with elevated amount of silt and debris over the unpubl. data, 1994; Ingersoll et al., in water temperatures, reduced pH, salamander’s habitat in the pool, and press). Sediments collected from Barton younger life stages, and long exposures the area occupied by the salamander Springs on April 20, 1995, also (Eisler 1988a; Pain 1995). Synergistic during the following months was contained PAHs at levels up to 6.5 times and additive effects may also occur reduced to the silt-free areas those shown to be toxic to Hyallela when lead is mixed with other metals or immediately adjacent to the spring azteca (City of Austin, unpubl. data, toxic chemicals (Eisler 1988a). Studies outlets (Hansen, in litt., 1995c). 1995; Ingersoll et al., in press). have shown that lead is highest in urban In addition to covering the In addition to sediment streams and lowest in rural streams, and salamander’s habitat, problems resulting concentrations, high levels of total that species diversity is also greater in from increased sediment loads may petroleum hydrocarbons have been rural streams than urban ones (Eisler include: Clogging of the gills of aquatic detected in water samples from Sunken 1988a). species, causing asphyxiation (Garton Garden Springs (Hauwert and Vickers Arsenic, which has been used in the 1977; Werner 1983; Schueler 1987); 1994). Petroleum hydrocarbons include manufacture of agricultural pesticides smothering their eggs and reducing the both aliphatic hydrocarbons and PAHs and other products (Eisler 1988b) and availability of spawning sites (EPA (Albers 1995). Normal concentrations of may be found in roadway and urban 1986; Schueler 1987); filling interstitial petroleum hydrocarbons in the Edwards runoff, has been detected in wells in the spaces and voids, thereby reducing aquifer are below the detection limit of Barton Springs watershed at levels water circulation and oxygen 1.0 mg/l. However, levels of total exceeding EPA drinking water standards availability (EPA 1986); filling and petroleum hydrocarbons measured 1.9 (0.05 mg/l) (Hauwert and Vickers 1994) blocking of recharge features and mg/l following a 9-mm (0.35-in) rain and in other areas of Texas (TWC 1989). underground conduits, restricting event in March 1994, and 1.3 mg/l in Concentrations of arsenic compounds recharge and groundwater storage April 1994. A well that is hydrologically adversely affecting aquatic biota have volume and movement; reducing light connected with Barton Springs been reported at 0.019 to 0.048 mg/l transmission needed for photosynthesis, contained a level of 2.1 mg/l in May (Eisler 1988b). Toxicity of arsenic to food production, and the capture of prey 1993 (Hauwert and Vickers 1994; BS/ aquatic life depends on many factors, by sight-feeding predators (EPA 1986; EACD 1994). Petroleum hydrocarbons including water temperature, pH, Schueler 1987); and exposing aquatic may enter water supplies through suspended solids, organic content, life to contaminants that readily bind to sewage effluents, urban and highway phosphate concentration, presence of sediments (such as petroleum runoff, and chronic leakage or acute other contaminants, arsenic speciation, hydrocarbons and heavy metals). Once spills of petroleum and petroleum and duration of exposure. As with many deposited, pollutants in ‘‘enriched products (Eisler 1987; Hauwert and contaminants, early life stages are most sediments can be remobilized under Vickers 1994; Albers 1995). sensitive, and large differences in suitable environmental conditions, Water samples from Sunken Garden responses exist between species (Eisler posing a risk to benthic life’’ (Schueler Springs also contained elevated levels of 1988b). 1987). lead, which are commonly found in Leaking underground storage tanks Research indicates that species in or petroleum-contaminated waters. Total ‘‘are considered to be one of the near contaminated sediments may be and dissolved lead levels at Sunken principal contributing sources of adversely affected even if water-quality Garden Springs measured 0.024 and ground-water pollution, placing a criteria are not exceeded (Landrum and 0.015 mg/l, respectively (Hauwert and significant loading on the State’s Robbins 1990; Medine and McCutcheon Vickers 1994; BS/EACD 1994). Typical aquifers, due to their regional 1989). Sediments act as a sink for many freshwater concentrations for lead are distribution and high number which are organic and inorganic contaminants between 0.001 and 0.01 mg/l (Menzer estimated to be leaking’’ (TWC 1989). (Menzer and Nelson 1980; Landrum and and Nelson 1980). The EPA drinking Chronic releases from leaking tanks Robbins 1990; Medine and McCutcheon water standard for total lead is 0.015 represent a serious risk of water 1989) and can accumulate these mg/l. In aquatic environments, contamination (City of Austin 1994). contaminants to levels that may impact dissolved lead is the most toxic form, The TNRCC (1994) lists leaking aquatic ecosystems (Landrum and and adverse effects (including reduced underground storage tanks as one of the Robbins 1990; Medine and McCutcheon survival, impaired reproduction, and top three most frequently encountered 1989). Metal-contaminated sediment reduced growth) on aquatic biota have sources of groundwater contamination toxicity studies have shown Hyallela been reported at concentrations of 0.001 in the Edwards aquifer. Common azteca, the primary food item of the to 0.005 mg/l (Eisler 1988a). Sources of pollutants from leaking underground Barton Springs salamander, to be the lead in water may include industrial storage tanks include gasoline, diesel, 23386 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations and other oil products (TWC 1989). The about 1.0 mg/l (measured as nitrate large increases in suspended solids to TNRCC’s ‘‘Leaking Petroleum Storage nitrogen) prior to 1955 to a 1986 level receiving waters (Barrett et al. 1995). Tank Case Report’’ lists 626 leaking of about 1.5 mg/l. Sunken Garden Several major highways have been built petroleum storage tanks for Hays and Springs measured greater than 2.0 mg/ over the recharge zone since the late Travis counties for the period between l nitrate nitrogen during the BS/EACD 1980’s, and the expansion of US 290 October 1984 and April 1995, of which study (Hauwert and Vickers 1994). from SH 71 through Oak Hill to a six- 158 cases resulted in some form of Elevated nitrate concentrations in lane freeway is underway. US 290 groundwater contamination. Fifteen of groundwater are attributed primarily to crosses the Barton Creek watershed and the reports specifically identified human activities (TWC 1989). Total discharges stormwater runoff from impacts to the Edwards aquifer, of nitrogen (as nitrogen) concentrations detention ponds into tributaries of which only three had been officially measured in wells in the more Barton Creek. Bypass events from a closed or were near closure. urbanized areas of the Barton Springs regional water quality pond at the US The conveyance and treatment of watershed are typically two to six times 290/Loop 360 interchange have resulted sewage in the watershed, particularly in higher than in rural areas (Slade 1992). in significant sediment deposition along the recharge zone, may also impair Elevated levels of total phosphorus and the entire length of an unnamed water quality. Sewage effluent may orthophosphorus have also been tributary and a portion of Barton Creek contain organics (including PAHs), detected in certain springs and wells in (City of Austin, in litt. 1995; City of metals, nutrients (nitrogen and the Barton Springs watershed (Slade Austin, unpubl. data, 1996; USFWS, in phosphorus), inorganic acids, and 1992; Hauwert and Vickers 1994). In litt. 1996), less than 5 km (3 mi) from microorganisms (Eisler 1987; Menzer addition to wastewater discharge, other Barton Springs. and Nelson 1980; TWC 1989; City of possible sources of nutrients in the Organophosphorus pesticides Austin 1991, 1993; Notenboom et al. Barton Springs watershed include commonly used in urban areas tend to 1994). Sewage contamination has fertilizers, solid wastes, animal waste, degrade rapidly in the environment, but occurred at Barton Springs following and decomposition of natural vegetation certain pesticides may remain major rain events (TWC 1989), and high (Hauwert and Vickers 1994; Slade et al. biologically active for some time (Eisler bacterial counts and algal blooms have 1986). 1986, Hill 1995). For example, diazinon, been reported (Slade et al. 1986; City of Over 145 km (90 mi) of wastewater which is commonly used in commercial Austin 1991). In 1982, high levels of lines occur in the recharge zone of the and residential areas, may remain fecal coliform bacteria at Barton Springs Barton Springs segment (Maureen biologically active in soils for up to 6 were attributed to a sewerline leak McReynolds, City of Austin Water and months under conditions of low upstream from Barton Springs Pool. Wastewater Utility, pers. comm., 1993). temperature, low moisture, high While fecal coliform bacteria are Most of the creeks contributing recharge alkalinity, and lack of microbial believed to be harmless, they indicate to the Barton Springs segment are degraders (Eisler 1986). Diazinon has the presence of other organisms that underlain by wastewater lines, and five shown adverse effects on stream insects may be pathogenic to aquatic life (Lager wastewater treatment plants are located at concentrations of 0.3 micrograms/l et al. 1977), some of which may pose a within the Barton Springs watershed (Eisler 1986). To ensure protection of threat to salamanders and/or their prey (City of Austin 1991). Leaking septic sensitive aquatic fauna, Eisler (1986) base. tanks and inadequate filtering in septic recommends that levels of diazinon in Wastewater discharges have been fields have also been identified as a water not exceed 0.08 micrograms/l. identified as a primary cause of algal major source of groundwater Many organophosphorus compounds blooms, which have been a recurring contamination, particularly for older may result in adverse effects after short- problem in both Barton Creek and at systems (TWC 1989; EPA 1990; City of term exposures. Exposure may include Barton Springs (City of Austin 1991, Austin 1991; Hauwert and Vickers 1994; contact with or ingestion of 1993). Increased nutrients promote TNRCC 1994). The TNRCC (1994) cites contaminated water, sediments, or food eutrophication of aquatic ecosystems, septic tanks as the most frequently items (Hill 1995). including the growth of bacteria, algae, encountered source of groundwater Increasing urbanization also increases and nuisance aquatic plants, and contamination in the Edwards aquifer. the risk of catastrophic spills. Because lowered oxygen levels. Menzer and Although the amount of effluent leached of the Barton Springs salamander’s Nelson (1980) note that ‘‘changes in from an individual septic system may be limited range, a single catastrophic spill nutrient pools must eventually directly small, the cumulative impact over the has the potential to impact the entire affect the productivity of the entire landscape can be significant, especially species and its habitat. Catastrophic ecosystem, even though the effects may for karst aquifers (EPA 1990). An spills can result from major not be measurable in biologic terms estimated 4,800 septic systems currently transportation accidents, underground until a number of years later.’’ Because exist in the Barton Springs watershed storage tank leaks, pipeline ruptures, most nutrients in urban runoff are and may contribute as much as 23 sewage spills, vandalism, and other present in soluble form and are thus percent of the total nitrogen load to the sources. Because no designated route for readily consumed by algae, nutrient aquifer (City of Austin 1995). hazardous materials exists for the concentrations present in urban runoff Highways can have major impacts on Austin area, potentially hazardous tend to stimulate algal blooms (Schueler groundwater quality (TNRCC 1994; materials may be transported on major 1987). A 5 km-(3-mi) long algal bloom Barrett et al. 1995). The TNRCC (1994) roadways crossing the Barton Springs observed along Barton Creek in April lists highways and roads as the fifth watershed (City of Austin 1994). 1993 may have been the result of an most common potential source of Expansion of major roadways and accidental discharge of 1.6 million liters groundwater contamination in the increasing volumes of traffic, (440,000 gallons) of effluent and Edwards aquifer. Elevated particularly across the recharge zone irrigation water from a golf course (City concentrations of metals, Kjeldahl near Barton Springs, increases the threat of Austin 1993, 1995). nitrogen, and organic compounds have of catastrophic spills. Based on USGS data (Slade et al. been detected in groundwater near Oil pipeline ruptures also represent a 1986), the average level of nitrates at highways and their control structures. source of groundwater contamination Barton Springs Pool has increased from Highway construction can also cause with potentially catastrophic Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23387 consequences. Three oil pipelines run Under low flow conditions, Barton drilled between fiscal year (FY) 1989 roughly parallel to each other across the Springs and a well near the bad water (September 1, 1988 to August 31, 1989) Barton Springs watershed and cross line (YD–58–50–216) have shown and FY 1993, with a maximum of 18 Barton Creek near the Hays/Travis increased dissolved solids wells drilled during a single year (BS/ county line. Two of these lines have concentrations, particularly sodium and EACD 1995). During FY 1994, 46 new ruptured within the recharge zone about chloride, indicating encroachment of wells were drilled, which is more than 13 km (8 mi) south of Barton Springs, bad water (Slade et al. 1986). The BS/ two and a half times the number drilled which constitute the largest spills EACD (Hauwert and Vickers 1994) in FY 1993 (BS/EACD 1994). An reported from Hays and Travis counties measured high levels of dissolved solids additional 45 wells were drilled in FY between 1986 and 1992 (TWC, unpubl. at Sunken Garden Springs, indicating a 1995 (BS/EACD 1995). As urbanization data). The first major spill occurred in significant influence of bad water in the outlying areas of Austin expands 1986, about 270 m (300 yards) from during low flow conditions. The and reliance on groundwater supplies Slaughter Creek, when an oil pipeline potential for encroachment of the bad increases, the number of wells and the was severed during a construction water line and/or recharge from the total volume of water withdrawal is also operation and released about 366,000 Trinity aquifer increases with pumpage expected to continue to increase. liters (96,600 gallons) of oil. Although of the aquifer and extended low In addition to contributing to about 91 percent of the spill was recharge or low flow conditions (Slade declining groundwater supplies, the reportedly recovered (Rose 1986), et al. 1986). The encroachment of bad TWC (1989) cites water wells as a major petroleum hydrocarbon fumes were water could have negative impacts on source of groundwater contamination by detected about six weeks later in caves the plants and animals associated with providing direct access of pollutants located up to 2.7 km (1.7 mi) northeast Barton Springs. High sodium and into the aquifer and possibly through of the spill (Russell 1987). The second chloride levels have been shown to inter-aquifer transfer of bad water. pipeline break occurred in 1987 near the increase fish mortality by disturbing ion Reduced groundwater levels exacerbate first spill site and released over 190,000 balances (Werner 1983). the problem through decreased dilution liters (49,000 gallons) of oil. According Based on water-budget analyses and of pollutants. to the TWC database, more than 97 pumpage estimates for 1982 (Slade et al. Under the 1996 pumping and drought percent of this spill was recovered 1985, 1986), discharge from the Barton regime, flows from Barton Springs (TWC, unpubl. data). Springs segment (withdrawal plus approached historically low conditions. Response times to hazardous springflow) was determined to be Because the flows from Eliza and materials spills vary, depending on roughly equal to recharge from surface Sunken Garden springs are considerably several factors including detection waters. Thus, a substantial increase in less than flows from the main springs in capability, location and size of the spill, groundwater withdrawal would be Barton Springs Pool (see Background weather conditions, whether or not the expected to cause a decrease in the section), the impacts of increased spill is reported, and the party quantity of water in the aquifer and groundwater withdrawals and drought performing the cleanup. In some cases, discharge from Barton Springs. The are realized more quickly for these spills may go undetected and/or estimated total pumpage in 1982 was spring outlets. As of July 1996, the water unreported. Generally, cleanup is 470 hectare-meters (3,800 acre-feet), or level in both Eliza Pool and Sunken initiated within several hours once the about 10 percent of the long-term mean Garden Springs was less than a foot spill has been detected and reported, discharge of 1,400 l/s (50 cfs) for Barton deep (O’Donnell, pers. obs., 1996). Both but many weeks or possibly years may Springs (Slade et al. 1985, 1986). The springs ceased flowing during the be necessary to complete the cleanup BS/EACD estimated total pumpage for drawdown of Barton Springs Pool effort. In areas where access is difficult 1994 to be about 570 hectare-meters (Hansen, pers. comm., 1996; O’Donnell, (due to remoteness, steep terrain, or (4,600 acre-feet) (Botto and Rauschuber pers. obs. 1996). other factors), remediation may not be 1995). The exact volume of water that is Other potential impacts to the possible or may be ineffective due to pumped from the aquifer is difficult to salamander’s surface habitat may delays in initiating cleanup. estimate, since meter reports are only include the use of high pressure fire Increased demands on water supplies required for municipal, industrial, hoses in areas where the salamander from the aquifer can also reduce the irrigation, and commercial wells and occurs, hosing silt from the shallow end quality and quantity of water in the not for wells that pump less than 38,000 of Barton Springs Pool into the Barton Springs segment and at Barton l (10,000 ga) per day, domestic wells, or salamander’s habitat, diverting water Springs. The volume of springflow is agricultural wells used for non- from Sunken Garden Springs into regulated by the level of water in the commercial livestock and poultry Barton Creek below Barton Springs, and aquifer. Discharge decreases as water operations (BS/EACD 1994). runoff from the train station above Eliza storage in the aquifer drops, which Groundwater pumpage increases Pool. Following the 1992 fish kill (see historically has resulted primarily from considerably and its effects on aquifer Background section), chlorine is no a lack of recharging rains rather than levels and springflows become more longer used to clean Barton Springs groundwater withdrawal for public pronounced during dry spells (Slade et Pool. The City of Austin has drafted a consumption. During these low flow al. 1986; D.G. Rauschuber & Associates management plan to avoid, minimize, conditions, ‘‘bad water’’ within the San and R.J. Brandes Co. 1990; BS/EACD and mitigate impacts to the salamander Antonio segment of the Edwards aquifer 1994; Nico Hauwert and Ron Fiesler, from pool cleaning and other park may move northward and contribute to BS/EACD, pers. comms., 1995). maintenance practices. flows from Barton Springs (Slade et al. The number of wells in the Barton Impervious cover over the Barton 1986; Stein 1995). In addition, increased Springs segment is growing with the Springs watershed is currently withdrawals could result in upward increasing dependence on the Edwards estimated at 4 to 6 percent (Slade 1992; leakage from the underlying Trinity aquifer for drinking water, irrigation, City of Austin 1995). This area is under aquifer, which has higher levels of and industrial use (BS/EACD 1994 and increasing pressure from urbanization dissolved solids and fluoride than water 1995; Botto and Rauschuber 1995). In (Austin Transportation Study (ATS) in the Barton Springs segment (Slade et the 235 sq mi area of the Barton Springs 1994). The ATS has projected that the al. 1986). segment, a total of 54 new wells were Austin metropolitan area will support a 23388 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations population of over 1.3 million by the ecosystem, and no comprehensive plan Edwards Rules and Texas Underground year 2020, up from 815,000 in 1994. is in place to protect the Barton Springs Storage Tanks Act (30 Texas Southwest Austin, which covers only a watershed from increasing threats to Administrative Code, Chapters 313 and portion of the Barton Springs watershed, water quality and quantity. The 334), which are promulgated and is projected to almost double in size, salamander is not included on the enforced by the TNRCC; the City of from an estimated 32,000 people in TPWD’s list of threatened and Austin’s water quality protective 1994 to 58,000 by the year 2020. endangered species, so the species is not ordinances (Williamson Creek Likewise, the population in northern protected by that agency. Ordinance (1980), Barton Creek Hays County is expected to more than Since the publication of the proposed Watershed Ordinance (1981), Lower triple in size by the year 2020, from rule, the City of Austin’s ‘‘Save Our Watersheds Ordinance (1981), 18,000 in 1994 to 68,000 in 2020 (ATS Springs’’ (SOS) ordinance was Comprehensive Watersheds Ordinance 1994). According to the Capital Area overturned by a Hays County jury in (1986), ‘‘Composite Ordinance’’ (1991), Planning Council (CAPCO), Hays November 1994 (Jerry J. Quick, et al. v. and the amended Composite Ordinance County has the second highest growth City of Austin). Prior to its invalidation, (1994); and the City of Dripping Springs’ rate in the ten-county CAPCO region. the SOS ordinance was the most Site Development Ordinance 52B. In Dripping Springs, which is located in stringent water quality protection addition to the inadequacies of these the contributing zone between Onion regulation in the Barton Springs rules and regulations (discussed below), Creek and Barton Creek, ‘‘will likely watershed, requiring impervious cover many of the agencies charged with their continue to experience a high rate of limitations of 15 to 25 percent (based on administration lack adequate resources growth as development continues along net site area), buffers along major creeks, to carry out their responsibilities U.S. 290 from the Oak Hill area no increases in loadings of 13 (TNRCC 1994). westward’’ (CAPCO 1990). pollutants, barring of exemptions and The purpose of the Clean Water Act Several major highways, including a variances from the ordinance is ‘‘to restore and maintain the physical, segment of State Highway 45, the provisions, and attempts to reduce the chemical, and biological integrity of the southern extension of Loop 1 risk of accidental contamination Nation’s waters.’’ Section 304 of the (‘‘MOPAC’’), and the Southwest (Camille Barnett, City of Austin, in litt., Clean Water Act provides the EPA Parkway have been built in the last 1993). authority to develop water quality In addition to the overturning of the decade to accommodate the projected criteria to protect water resources, SOS ordinance, several bills passed population growth, real estate including groundwater. However, the speculation, and traffic demands in this during the State’s 74th (1995) legislative primary focus of the Clean Water Act is area. Justification for the Highway 290 session that curtail the City of Austin’s on surface water, and the law does not expansion was largely based on the ability to implement water quality mandate protection of groundwater population growth projected for and protective measures within its five-mile resources. Furthermore, surface and already occurring in this area (ATS ETJ. Senate Bill 1017 and House Bill groundwater tend to be treated as 1994). In addition to these roadways, 3193 exempt large developments (over separate and distinct resources rather the remainder of State Highway 45, an 1,000 acres, or 500 acres if approved by than interactively, and protection 82-mi loop around Austin, is proposed the TNRCC) from all City of Austin focuses on human use rather than to be built within the next 20 to 25 water quality ordinances and land use effects on aquatic organisms. Section years. This highway would cross Barton regulations. The TNRCC has determined Creek and several other creeks in the that this legislation conflicts with State 302, which provides for a National Barton Springs watershed (City of and Federal regulations; does not Pollution Discharge Elimination System Austin 1994). address groundwater quality; is (NPDES), primarily addresses point Less than 2,400 ha (6,000 ac) of inadequate to ensure protection of source pollution and not non-point preserve lands currently exist in the surface water quality and would not source pollution or groundwater Barton Springs watershed (USFWS meet State water quality standards; contamination. Efforts are needed to 1996). Much of the remaining area along provides little or no inspection, integrate the relationship between Barton Creek and within the City of enforcement, or compliance safeguards; surface and groundwater into the Austin’s Extra-territorial Jurisdiction and would allow surface and regulatory framework and to assess the (ETJ) is slated for development at levels groundwater quality to degrade (Mark impact of surface water regulations and of greater than 30 percent impervious Jordan, TNRCC, in litt., 1995). Other management practices on groundwater cover (City of Austin unpubl. data). laws passed during the 1995 session resources. B. Overutilization for commercial, that limit the enforcement authority of Part C of the Safe Drinking Water Act, recreational, scientific, or educational local governments include Senate Bill the Underground Injection Control purposes. No threat from overutilization 14, which allows landowners to sue Program, requires that the injection of of this species is known at this time. local and State governments to fluids underground not endanger C. Disease or predation. No diseases invalidate regulations or seek drinking water supplies. Section 1427 or parasites of the Barton Springs compensation for actions that would (Sole Source Aquifer Program) requires salamander have been reported. Primary decrease property values by 25 percent that federally funded projects predators of the Barton Springs or more; and Senate Bill 1704, which potentially affecting a sole source salamander are believed to be predatory ‘‘grandfathers’’ developers from updated aquifer ensure that drinking water will fish and crayfish; however, no health and safety ordinances. not be contaminated. A portion of the information exists to indicate that Other laws and regulations potentially Barton Springs watershed has been predation poses a major threat to this affecting water quality in the Barton designated as a Sole Source Aquifer. species. Springs watershed include the Federal The Sole Source Aquifer Program D. The inadequacy of existing Clean Water Act, Safe Drinking Water applies only to Federal projects and not regulatory mechanisms. No existing Act, Resource Conservation and to State or private projects, unless they rules or regulations specifically require Recovery Act, and Comprehensive receive Federal funds, and no protection of the Barton Springs Environmental Response, requirements related to aquatic salamander or the Barton Springs Compensation, and Liability Act; the organisms are included. Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23389

The Federal Resource Conservation materials storage tanks. The Edwards not degrade waters in the Barton and Recovery Act (RCRA) and Rules regulate construction activities Springs watershed. The guidance Comprehensive Environmental though review of Water Pollution provided in the Available Conservation Response, Compensation, and Liability Abatement Plans (WPAPs). The WPAPs Measures section of this final rule is Act focus on remedial actions once do not require site-specific water quality intended to assist landowners in groundwater contamination has performance standards for achieving this goal. Acquisition of 4,000 occurred, rather than on prevention. developments over the recharge zone acres in the Barton Creek watershed as Under these Acts, monitoring is nor do they address land use, BCCP preserve land will provide required to determine when remediative impervious cover limitations, nonpoint additional benefits to the salamander by cleanup actions following groundwater source pollution, application of preserving the natural integrity of the contamination by chemical and waste fertilizers and pesticides, or retrofitting landscape and positively contributing to sites is complete. In addition, the RCRA for developments existing prior to the water quality and quantity in Barton requires that all underground storage implementation of the Rules. (Travis Creek and Barton Springs. The BCCP tanks installed since 1988 be equipped County was incorporated into the Rules does not apply to development activities with spill and overfill protection in March 1990; Hays County was in Hays County. devices, protected from corrosion that incorporated in 1984.) The WPAPs also To protect water quantity in the could result in releases, and equipped do not apply to development activities Barton Springs segment, the BS/EACD with devices that would detect any in the aquifer’s contributing zone. To has developed a Drought Contingency releases that might occur. Previously date, the Edwards Rules do not include Plan (D.G. Rauschuber & Associates and existing tanks are to be upgraded to a comprehensive plan to address the R.J. Brandes Co. 1990). Barton Springs these same standards over a ten-year effects of cumulative impacts on water has always flowed during recorded period. quality in the aquifer or its contributing history, and one of the BS/EACD’s goals Much of the responsibility for zone. is to assure that Barton Springs flow protecting surface and groundwaters is The Edwards Rules and the Texas ‘‘does not fall appreciably below directed to and administered by the Underground Storage Tanks Act (Title historic low levels’’ (D.G. Rauschuber & states. Section 106 of the Clean Water 31, Chapters 313 and 334 of the Texas Associates and R.J. Brandes Co. 1990). Act provides funds to the states for Administrative Code) require that all The BS/EACD regulates about 60 to 80 water quality programs, including tanks installed after September 29, 1989, percent of the total volume that is comprehensive groundwater protection be equipped with release detection pumped from the Barton Springs programs. Section 303 requires states to devices, corrosion protection, and spill/ segment and has the ability to limit set water quality standards for surface overflow protection; that all previously development of new wells, impose waters, employing the criteria existing tanks be upgraded to the same water conservation measures, and established by the EPA under section standards by December 22, 1994; and curtail pumpage from these wells during 304, and to designate uses for each that tanks located in the Edwards drought conditions (Bill Couch, BS/ water body. Section 319 provides aquifer recharge and transition zones be EACD, pers. comm., 1992, and in litt. technical and financial assistance to the of double-walled or equivalent 1994; Botto and Rauschuber 1995). states to implement programs to control construction with continuous According to the BS/EACD (B. Couch, nonpoint source pollution for both monitoring of the space between the pers. comm., 1992), water well surface water and groundwater. The tank and piping walls for leak detection. production in the higher elevations of EPA’s policy, ‘‘Protecting the Nation’s The adequacy of these measures in the Barton Springs segment has been Groundwater: EPA’s Strategy for the preventing groundwater contamination, limited during periods of lower aquifer 1990’s’’ also recognizes states as having particularly over the long term, has not levels in recent years. However, the the primary role of protecting been demonstrated. Routine testing of ability of the BS/EACD to ensure the groundwater. Section 1428 of the Safe tanks to ensure proper functioning is success of the plan is limited, since it Drinking Water Act, the Wellhead not required until after a leak has been does not regulate 20 to 40 percent of the Protection Program, directs states to detected, and no routine monitoring or total volume that is pumped from the control sources of contaminants near testing by the TNRCC is conducted to Barton Springs segment. public supply wells used for drinking determine compliance with the E. Other natural or manmade factors water. Most of the State of Texas’ efforts regulations. Formal approval by the affecting its continued existence. The to protect surface and groundwater TNRCC of construction plans for new very restricted range of the Barton resources focus on point sources of tanks is only required for the recharge Springs salamander makes this species pollution, monitoring, and remediative zone and not the contributing zone. The especially vulnerable to acute and/or actions (TNRCC 1994). The TNRCC’s TNRCC does not maintain a database of chronic groundwater contamination. Tier II Antidegradation Policy applies the total number of storage tanks that Since the salamander is fully aquatic, only to regulatory actions that would have been upgraded, those that still there is no possibility for escape from exceed fishable/swimmable quality of need to be upgraded, or those that are contamination or other threats to its Barton and Onion creeks, and allows in violation of the regulations (Jackie habitat. A single incident (such as a degradation if necessary for important Hardee, TNRCC, pers. comm., 1995). contaminant spill) has the potential to economic or social development. A Section 10(a)(1)(B) permit allowing eliminate the entire species and/or its The Edwards Rules regulate the incidental taking of two endangered prey base. Crustaceans, particularly construction-related activities on the songbirds and six endangered karst amphipods, on which the salamander recharge zone of the Edwards aquifer invertebrates, known as the Balcones feeds are especially sensitive to water that may ‘‘alter or disturb the Canyonlands Conservation Plan (BCCP), pollution (Mayer and Ellersieck 1986; topographic, geologic, or existing was issued to Travis County and the Phipps et al. 1995; Burton and Ingersoll recharge characteristics of a site’’ as well City of Austin in May 1996 (USFWS 1994). as any other activity ‘‘which may pose 1996). The BCCP does not allow Research indicates that amphibians, a potential for contaminating the incidental taking of the Barton Springs particularly their eggs and larvae, are Edwards aquifer,’’ including sewage salamander, and requires that all permit sensitive to many pollutants, such as collection systems and hazardous applicants ensure that their activities do heavy metals; certain insecticides, 23390 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations particularly cyclodienes (endosulfan, present, and future threats faced by this evaluation of activities under the endrin, toxaphene, and dieldrin), and species in determining to make this rule jeopardy standard of section 7 of the certain organophosphates (parathion, final. The best scientific data indicate Act. Because jeopardy to the species and malathion); nitrite; salts; and petroleum that listing the Barton Springs adverse modification of its critical hydrocarbons (Harfenist et al. 1989). salamander as endangered is warranted. habitat are indistinguishable, the Christine Bishop (Canadian Wildlife Critical habitat is determined to be not Service has determined that designation Service) states that ‘‘the health of prudent for this species for the reasons of critical habitat for the Barton Springs amphibians can suffer from exposure to discussed below. salamander is not prudent. pesticides (Harfenist et al. 1989). Critical Habitat Available Conservation Measures Because of their semipermeable skin, the development of their eggs and larvae Critical habitat is defined in section 3 Conservation measures provided to in water, and their position in the food of the Act as: (i) The specific areas species listed as endangered or web, amphibians can be exposed to within the geographical area occupied threatened under the Act include waterborne and airborne pollutants in by a species, at the time it is listed in recognition, recovery actions, their breeding and foraging habitats accordance with the Act, on which are requirements for Federal protection, and ** *. [Furthermore] pesticides found those physical or biological prohibitions against certain practices. probably change the quality and features (I) essential to the conservation Recognition through listing encourages quantity of amphibian food and habitat of the species and (II) that may require and results in public awareness and (Bishop and Pettit 1992).’’ Toxic effects special management considerations or conservation actions by Federal, State, to amphibians from pollutants may be protection; and (ii) specific areas and local agencies, private either lethal or sublethal, including outside the geographical area occupied organizations, and individuals. The Act morphological and developmental by a species at the time it is listed, upon provides for possible land acquisition aberrations, lowered reproduction and a determination that such areas are and cooperation with the States and survival, and changes in behavior and essential for the conservation of the requires that recovery actions be carried certain biochemical processes. species. ‘‘Conservation’’ means the use out for all listed species. The protection Observations of central Texas Eurycea of all methods and procedures needed required of Federal agencies and the salamanders in captivity indicate that to bring the species to the point at prohibitions against taking and harm are these species, including the Barton which protection under the Act is no discussed, in part, below. Springs salamander, are very sensitive longer necessary. The health of the aquifer and Barton to changes in water quality and are Section 4(a)(3) of the Act, as Springs, and the long-term survival of ‘‘quite delicate and difficult to keep amended, and implementing regulations the Barton Springs salamander, can only alive’’ (Sweet, in litt., 1993). Sweet (50 CFR 424.12) require that, to the be ensured through a concerted, reported that captive individuals exhibit maximum extent prudent and organized effort on the part of all adverse reactions to plastic containers, determinable, the Secretary designate affected Federal, State, and local aged tapwater, and detergent residues. critical habitat at the time the species is governments and the private citizenry to The water in which these salamanders determined to be endangered or protect the Barton Springs watershed. are kept also requires frequent changing threatened. Service regulations (50 CFR Conservation and management of the (Sweet, in litt., 1993). Unsuccessful 424.12(a)(1)) state that designation of Barton Springs salamander will entail attempts at captive propagation of the critical habitat is not prudent when one removing threats to its survival, San Marcos salamander (Janet Nelson, or both of the following situations including—(1) protecting the quality Southwest Texas State University, pers. exist—(1) The species is threatened by and quantity of springflow from Barton comm., 1992) and very limited success taking or other human activity, and Springs by implementing at inducing captive spawning in the identification of critical habitat can be comprehensive management programs Barton Springs salamander (Ables, expected to increase the degree of such to control and reduce point and Coale, and Dwyer, pers. comms., 1996) threat to the species, or (2) such nonpoint sources of pollution may also be due to these species’ designation of critical habitat would not throughout the Barton Springs sensitivity to environmental stress. be beneficial to the species. The Service watershed; (2) minimizing the risk and Several citizens have expressed finds that designation of the springs likelihood of pollution events that concern over impacts to the salamander occupied by the Barton Springs would affect water quality; (3) from recreational use of Barton Springs salamander as critical habitat would not strengthening efforts to protect Pool for swimming. However, no be prudent because it would not provide groundwater and springflow quantity; evidence exists to indicate that a conservation benefit to the species. (4) continuing to examine and swimming in Barton Springs Pool poses Designation of critical habitat benefits implement pool cleaning practices and a threat to the salamander population, a listed species only when adverse other park operations that protect and which is located 3 to 5 m (10 to 15 ft) modification or destruction of critical perpetuate the salamander’s surface below the water’s surface. The survey habitat could occur without the survival habitat and population; and (5) public data show no correlation between and recovery of the species also being outreach and education. It is also recreational use of the pool and jeopardized. Because the Barton Springs anticipated that listing will encourage salamander abundance. Furthermore, salamander is restricted to one area that continued research on the critical salamander population declines have discharges water from the entire Barton aspects of the Barton Springs occurred in Eliza Pool, which is closed Springs watershed, any action that salamander’s biology (e.g., longevity, to the public. Although certain pool would result in adverse modification or natality, sources of mortality, feeding maintenance practices may impact destruction of the salamander’s critical and breeding ecology, and sensitivity to individual salamanders occurring in the habitat would also jeopardize its contaminants and other water quality pools, they are unlikely to have a major continued survival and recovery. constituents). impact on the entire species. Designating critical habitat would Section 7(a) of the Act, as amended, The Service has carefully assessed the therefore not provide a benefit to the requires Federal agencies to evaluate best scientific and commercial species beyond the benefits already their actions with respect to any species information available regarding the past, provided by listing and subsequent that is proposed or listed as endangered Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations 23391 or threatened and with respect to its significantly impact water quality and habitat; removal of beneficial aquatic critical habitat, if any is designated. quantity in the Barton Springs plants; dredging; and frequent and/or Regulations implementing this watershed. Rather, it is the sum of all of prolonged drawdown, particularly interagency cooperation provision of the these activities and their associated during drought); Act are codified at 50 CFR Part 402. impacts that threaten this resource and (3) Illegal discharges or dumping of Section 7(a)(1) requires Federal agencies the survival of the Barton Springs chemicals, silt, sewage, fertilizers, to use their authorities to further the salamander. Because most of the threats pesticides, heavy metals, oil, organic purposes of the Act by carrying out to the salamander come from diffuse wastes, or other pollutants into the programs for listed species. Section sources that are cumulative in nature, Barton Springs watershed; 7(a)(2) requires Federal agencies to their effects will be observable at the (4) New developments or construction ensure that activities they authorize, ecosystem and population level rather not designed and/or implemented fund, or carry out are not likely to than at the individual level. Thus, the pursuant to State and local water quality jeopardize the continued existence of a purpose of this guidance is not only to protection regulations in effect as of the listed species. If a Federal action may identify activities that would or would date of this rule, that result in an affect a listed species, the responsible not likely result in ‘‘take’’ of appreciable change in the quality or Federal agency must enter into individuals, but activities that in quantity of water in the Barton Springs consultation with the Service, unless combination will ultimately affect the watershed above normal background the Service agrees with the agency that long-term survival of the Barton Springs conditions (non-degradation); the action is not likely to adversely salamander. This guidance should not (5) Withdrawal of water from the affect the species. be used to substitute for local efforts to aquifer to the point at which The Act and its implementing develop and implement comprehensive springflows at Barton Springs regulations set forth a series of general management programs for the Barton appreciably diminish; prohibitions and exceptions that apply Springs watershed. (6) Withdrawal of water from the to all endangered wildlife. These Activities that the Service believes are contributing zone to the point at which prohibitions, codified at 50 CFR 17.21, unlikely to result in a violation of baseflows in the creeks appreciably in part, make it illegal for any person section 9 for the Barton Springs diminish; subject to the jurisdiction of the United salamander are: (7) Introduction of non-native aquatic States to take (includes harass, harm, (1) Range management and other species (fish, plants, other) into Barton pursue, hunt, shoot, wound, kill, trap, agricultural practices that promote good Springs or the Barton Springs segment or collect, or to attempt any of these), vegetative cover and soil conditions (for of the Edwards aquifer; import or export, ship in interstate example, low to moderate stocking commerce in the course of commercial (8) Destruction or alteration of caves, rates, rotational and deferred grazing, sinkholes, or other significant recharge activity, or sell or offer for sale in and maintaining native bunchgrasses); interstate or foreign commerce any features (including dumping, (2) Swimming in Barton Springs pool; vandalism, and/or diverting listed species. It also is illegal to (3) Buying or selling of property; possess, sell, deliver, carry, transport, or (4) Improvements to existing contaminated water into these features); ship any such wildlife that has been structures, such as renovations, and taken illegally. Certain exceptions apply additions, repairs, or replacement; (9) Destruction or alteration of spring to agents of the Service and State (5) New developments or construction orifices that provide water to Barton conservation agencies. The Barton that do not result in an appreciable Springs. Springs salamander is not known to be change in the quality or quantity of Questions as to whether specific commercially traded and such permit water in the Barton Springs watershed activities will constitute a violation of requests are not expected. above normal background conditions section 9 should be directed to the Permits may be issued to carry out (non-degradation). Generally, new Service’s Austin Ecological Services otherwise prohibited activities developments and construction Field Office (see ADDRESSES section). involving endangered wildlife species designed and implemented pursuant to Requests for copies of the regulations under certain circumstances. State and local water quality protection regarding listed wildlife and inquiries Regulations governing permits are at 50 regulations in effect as of the date of this regarding prohibitions and permits CFR 17.22 and 17.23. Such permits are rule will not result in a violation of should be addressed to the U.S. Fish available for scientific purposes, to section 9; and Wildlife Service, Branch of enhance the propagation or survival of (6) Routine residential lawn Endangered Species/Permits, P.O. Box the species, and/or for incidental take in maintenance; and 1306, Albuquerque, New Mexico 87103 connection with otherwise lawful (7) Upgrading or replacing existing (telephone: 505/248–6920; facsimile: activities. structures (such as bridge crossings, 505/248–6922). It is the policy of the Service (59 FR BMPs, septic systems, underground National Environmental Policy Act 34272; July 1, 1994) to identify to the storage tanks) in order to minimize maximum extent practicable at the time pollutant loadings into receiving waters. The Fish and Wildlife Service has a species is listed, those activities that Activities that the Service believes determined that Environmental would or would not constitute a could potentially harm the Barton Assessments and Environmental Impact violation of section 9 of the Act. The Springs salamander and result in a Statements, as defined under the intent of this policy is to increase public violation of section 9 include: authority of the National Environmental awareness of the effect of listing on (1) Collecting or handling of the Policy Act of 1969, need not be proposed and ongoing activities within species without appropriate permits; prepared in connection with regulations a species’ range, and to assist the public (2) Alteration or disturbance of the adopted pursuant to section 4(a) of the in identifying measures needed to Barton Springs salamander’s habitat in Endangered Species Act of 1973, as protect the species. Aside from the the pools where it occurs (including use amended. A notice outlining the potential for catastrophic spills, no of chemicals to clean the pools where Service’s reasons for this determination single development activity or water the salamander occurs; use of high was published in the Federal Register withdrawal in and of itself is likely to pressure fire hoses in salamander on October 25, 1983 (48 FR 49244). 23392 Federal Register / Vol. 62, No. 83 / Wednesday, April 30, 1997 / Rules and Regulations

Required Determinations List of Subjects in 50 CFR Part 17 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. The Service has examined this 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Endangered and threatened species, 625, 100 Stat. 3500, unless otherwise noted. regulation under the Paperwork Exports, Imports, Reporting and Reduction Act of 1995 and found it to recordkeeping requirements, and 2. Section 17.11(h) is amended by contain no information collection Transportation. adding the following, in alphabetical requirements. Regulation Promulgation order under AMPHIBIANS, to the List of References Cited Endangered and Threatened Wildlife, to Accordingly, part 17, subchapter B of read as follows: A complete list of all references cited chapter I, title 50 of the Code of Federal in this rule is available upon request Regulations, is amended as set forth § 17.11 Endangered and threatened from the Austin Ecological Services below: wildlife. Field Office (see ADDRESSES section). * * * * * Author: The primary author of this PART 17Ð[AMENDED] final rule is Lisa O’Donnell, Austin (h) * * * Ecological Services Field Office (see 1. The authority citation for part 17 ADDRESSES section). continues to read as follows:

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

******* AMPHIBIANS

******* Salamander, Barton Springs ...... Eurycea sosorum ...... U.S.A. (TX) Entire ...... E 612 NA NA

*******

Dated: April 24, 1997. John G. Rogers, Acting Director, Fish and Wildlife Service. [FR Doc. 97–11194 Filed 4–29–97; 8:45 am] BILLING CODE 4310±55±P