Rule2021-17600
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Georgetown and Salado Salamanders
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 18, 2021
Effective
September 17, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Georgetown salamander (Eurycea naufragia) and Salado salamander (Eurycea chisholmensis) under the Endangered Species Act of 1973, as amended (Act). We designate a total of approximately 1,315 acres (538 hectares) of critical habitat for these species in Bell and Williamson Counties, Texas. This rule extends the Act's protections to the Georgetown salamander's and Salado salamander's designated critical habitat.
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[Federal Register Volume 86, Number 157 (Wednesday, August 18, 2021)]
[Rules and Regulations]
[Pages 46536-46578]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17600]
[[Page 46535]]
Vol. 86
Wednesday,
No. 157
August 18, 2021
Part V
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Georgetown and Salado Salamanders; Final Rule
Federal Register / Vol. 86 , No. 157 / Wednesday, August 18, 2021 /
Rules and Regulations
[[Page 46536]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2020-0048; FF09E21000 FXES11110900000 212]
RIN 1018-BE78
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Georgetown and Salado Salamanders
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Georgetown salamander (Eurycea naufragia) and
Salado salamander (Eurycea chisholmensis) under the Endangered Species
Act of 1973, as amended (Act). We designate a total of approximately
1,315 acres (538 hectares) of critical habitat for these species in
Bell and Williamson Counties, Texas. This rule extends the Act's
protections to the Georgetown salamander's and Salado salamander's
designated critical habitat.
DATES: This rule is effective September 17, 2021.
ADDRESSES: This final rule is available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and at <a href="http://www.fws.gov/southwest/es/austintexas">http://www.fws.gov/southwest/es/austintexas</a>.
Comments and materials we received, as well as some supporting
documentation we used in preparing this rule, are available for public
inspection at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R2-ES-2020-
0048.
The coordinates or plot points or both from which the maps are
generated are included in the decision file for this critical habitat
designation and are available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket
No. FWS-R2-ES-2020-0048 and at the Austin Ecological Services Field
Office's website (<a href="https://www.fws.gov/southwest/es/austin">https://www.fws.gov/southwest/es/austin</a> texas/). Any
additional tools or supporting information that we developed for this
critical habitat designation will also be available at the Service
website and may also be included in this preamble and/or at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Rd., Suite 200, Austin, TX 78758; telephone 512-490-0057.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if we determine that
a species is an endangered or threatened species, we must designate
critical habitat to the maximum extent prudent and determinable. We
published a final rule to list the Georgetown salamander and Salado
salamander as threatened species on February 24, 2014 (79 FR 10236).
Designations of critical habitat can be completed only by issuing a
rule.
What this document does. This rule designates a total of
approximately 1,315 acres (ac) (538 hectares (ha)) as critical habitat
for the Georgetown and Salado salamanders in Bell and Williamson
Counties, Texas.
The basis for our action. Under section 4(a)(3) of the Act, if we
determine that any species is an endangered or threatened species, we
must, to the maximum extent prudent and determinable, designate
critical habitat. Section 3(5)(A) of the Act defines critical habitat
as (i) the specific areas within the geographical area occupied by the
species, at the time it is listed, on which are found those physical or
biological features (I) essential to the conservation of the species
and (II) which may require special management considerations or
protections; and (ii) specific areas outside the geographical area
occupied by the species at the time it is listed, upon a determination
by the Secretary that such areas are essential for the conservation of
the species. Section 4(b)(2) of the Act states that the Secretary must
make the designation on the basis of the best available scientific data
after taking into consideration the economic impact, national security
impact, and any other relevant impact of specifying any particular area
as critical habitat. The Secretary may exclude an area from critical
habitat if she determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless she determines, based on the best scientific data available,
that the failure to designate such area as critical habitat will result
in the extinction of the species.
Economic analysis. In accordance with section 4(b)(2) of the Act,
we prepared an economic analysis of the impacts of designating critical
habitat for the Georgetown and Salado salamanders. We published the
announcement of, and solicited public comments on, the draft economic
analysis (DEA; 85 FR 57578, September 15, 2020).
Previous Federal Actions
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for the Georgetown and Salado
salamanders in this rule. For more information on the Georgetown and
Salado salamanders, their habitat, or previous Federal actions, refer
to the final listing rule published in the Federal Register on February
24, 2014 (79 FR 10236), which is available online at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R2-ES-2012-0035.
On August 22, 2012, we published a proposed rule (77 FR 50768) to
list the Georgetown salamander (Eurycea naufragia), Salado salamander
(Eurycea chisholmensis), Jollyville Plateau salamander (Eurycea
tonkawae), and Austin blind salamander (Eurycea waterlooensis) as
endangered species and to designate critical habitat for these species
under the Act (16 U.S.C. 1531 et seq.). We proposed to designate
approximately 1,031 acres (ac) (423 hectares (ha)) in 14 units located
in Williamson County, Texas, as critical habitat for the Georgetown
salamander, and approximately 372 ac (152 ha) in 4 units located in
Bell County, Texas, as critical habitat for the Salado salamander. That
proposal had a 60-day comment period, ending October 22, 2012. We held
a public meeting and hearing in Round Rock, Texas, on September 5,
2012, and a second public meeting and hearing in Austin, Texas, on
September 6, 2012.
On January 25, 2013, we published a proposed rule (78 FR 5385)
revising the locations of proposed critical habitat units 2, 3, 5, 8,
and 12 for the Georgetown salamander based on new information. We
reopened the public comment period for 45 days, ending March 11, 2013,
to allow comments on the revisions to the proposed critical habitat and
the draft economic analysis.
On August 20, 2013, we announced our decision to extend the
deadline for our final listing and critical habitat determination for
the Georgetown and Salado salamanders for 6 months due to scientific
disagreements regarding conservation status of these species and
reopened the comment periods on our August 22, 2012, and January 25,
2013, proposals for 30 days (78 FR 51129). In addition, on January 7,
2014, we announced the availability of new information and reopened the
previous comment periods for an additional 15 days, until January 22,
2014 (79 FR 800).
On February 24, 2014, we published: (1) A final rule (79 FR 10236)
to list the Georgetown and Salado salamanders as threatened species
under the Act; and
[[Page 46537]]
(2) a proposed rule (79 FR 10077) under section 4(d) of the Act (a
proposed ``4(d) rule'') containing regulations necessary and advisable
to provide for the conservation of the Georgetown salamander, with a
60-day public comment period, ending April 25, 2014.
On April 9, 2015, we published a revised proposed 4(d) rule for the
Georgetown salamander (80 FR 19050); that document reopened the public
comment period on the proposed 4(d) rule for 30 days, ending May 11,
2015. On August 7, 2015, we published a final 4(d) rule for the
Georgetown salamander (80 FR 47418).
On September 15, 2020, we published a proposed rule (85 FR 57578)
to revise our proposed designation of critical habitat for the
Georgetown and Salado salamanders. Based on published genetic analyses,
we revised the distribution of the Georgetown and Salado salamanders
and adjusted previously proposed critical habitat units accordingly. We
also proposed changes to our description of the physical or biological
features essential to the conservation of the species. We proposed a
total of approximately 1,519 ac (622 ha) of critical habitat for the
species in Bell and Williamson Counties, Texas. The total amount of
critical habitat proposed for both salamanders increased by
approximately 116 ac (47 ha). The reasons for this increase were the
addition of a new occupied site for the Salado salamander and refined
mapping of previously proposed critical habitat units based on more
precise spring locations. That proposal had a 60-day comment period,
ending November 16, 2020.
Summary of Changes From the September 15, 2020, Proposed Rule
As noted above, we published three proposed rules concerning the
designation of critical habitat for the Georgetown and Salado
salamanders (77 FR 50768, August 22, 2012; 78 FR 5385, January 25,
2013; 85 FR 57578, September 15, 2020), as well as other relevant
documents concerning these species. In doing so, we gathered public
comments on the proposed critical habitat and its revisions during
multiple comment periods, and we obtained new and updated scientific
information following the publication of the 2012 proposed rule.
Accordingly, the critical habitat we are designating in this rule
differs from what we originally proposed to designate as critical
habitat for these species in 2012. Please see the January 25, 2013, and
September 15, 2020, proposed rules for a discussion of our proposed
revisions to the August 22, 2012, proposed critical habitat, and the
reasons for those revisions. This summary discusses only the changes we
make in this final rule from the September 15, 2020, proposed rule.
This final rule incorporates changes to our September 15, 2020,
proposed rule (85 FR 57578) based on the comments we received, as
discussed below under Summary of Comments and Recommendations. Based on
those comments, in this rule, we revise our discussion under Physical
or Biological Features Essential to the Conservation of the Species,
specifically the discussion of aspects of salamander movement from
spring openings, potential prey, and water quality parameters. We also
revise our discussion under Criteria Used To Identify Critical Habitat
to provide additional clarity. Finally, we exclude three critical
habitat units for the Salado salamander, totaling approximately 204 ac
(84 ha), as identified below in Table 3. These exclusions account for
the difference between the approximately 1,519 ac (622 ha) we proposed
for designation as critical habitat for the two salamanders in our
September 15, 2020, proposed rule (85 FR 57578) and the approximately
1,315 ac (538 ha) we are designating as critical habitat for the
species in this rule.
Summary of Comments and Recommendations
In the proposed rule published on September 15, 2020 (85 FR 57578),
we requested that all interested parties submit written comments on the
proposal by November 16, 2020. We also contacted appropriate Federal
and State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Temple Daily Telegram and Williamson County Sun. We did not receive any
requests for a public hearing. During the open comment period, we
received 25 public comments on the proposed rule to designate critical
habitat for the Georgetown and Salado salamanders. Some commenters
provided suggestions on how we could refine or improve the designation,
and all substantive information provided to us during the comment
period has been incorporated directly into this final rule or is
addressed below.
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review actions under the Act, we solicited
expert opinion on the proposed critical habitat from five knowledgeable
individuals with scientific expertise that includes familiarity with
the Georgetown and Salado salamanders and their taxonomy, habitat,
biological needs, and threats. We received responses from three of the
peer reviewers. The purpose of peer review is to ensure that our
critical habitat designations are based on scientifically sound data,
assumptions, and analyses.
We reviewed all the comments we received from the peer reviewers
for substantive issues and new information regarding the Georgetown and
Salado salamanders and their habitat use and needs. The peer reviewers
generally concurred with the information regarding the Georgetown and
Salado salamanders' taxonomy and habitat. In some cases, they provided
additional information, clarifications, and suggestions to improve the
designation. The reviewers also provided or corrected references we
cited in the September 15, 2020, proposed rule. The additional details
and information have been incorporated into this final rule as
appropriate. Substantive comments we received from peer reviewers as
well as local governments, nongovernmental organizations, and the
public are outlined below.
Peer Review Comments
Comment 1: One peer reviewer recommended subsurface areas
designated as critical habitat should be larger considering that the
Georgetown and Salado salamanders heavily rely upon subterranean
habitat. Specifically, more emphasis should be placed on the recharge
zones that allow water to enter the aquifer that supports habitat for
these species.
Our Response: In accordance with section 3(5)(A) of the Act, we are
designating critical habitat in specific areas within the geographical
area occupied by the species at the time of listing that contain the
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protection. We acknowledge that the recharge zone of the aquifer
supporting salamander locations is very important to the conservation
of these species. However, our goal with this critical habitat
designation is to delineate the habitat that is physically occupied and
used by the species rather than delineate all land or aquatic areas
that influence the species. There is no evidence to support that the
entire recharge zone of the
[[Page 46538]]
aquifers is occupied by the salamander species.
Public Comments
Comment 2: One commenter requested that Solana Ranch in Bell County
be excluded from the final critical habitat designation because the
area occupied by the Salado salamander is protected by a conservation
easement monitored by The Nature Conservancy.
Our Response: In this final rule, we exclude 204 ha (84 ac) of
private land within the boundaries of the 256 ac (104 ha) Solana Ranch
under perpetual conservation easement, from our designation of critical
habitat (see Exclusions, below). When considering the benefits of
exclusion based on a current land management or conservation plan, we
examine a number of different criteria (see Exclusions, below, in this
rule). Among these is the likelihood that the conservation strategies
in the plan will be effective. The conservation easement, established
on a portion of the Solana Ranch (i.e., Solana Ranch Preserve) in 2016,
includes management activities such as maintenance of the site as
permanent open space that has been left in its natural vegetative
state, maintenance and repair of existing enclosure fences around
springs, and research approved by the landowner. In addition, we
evaluate if the conservation management strategies and actions in the
plan will be implemented into the future, based on past practices,
written guidance, or regulations. The perpetual Solana Ranch Preserve
conservation easement will result in long-term protection of three
springs located on Solana Ranch, including areas immediately upstream
of the springs to maintain water quality. By protecting the springs and
their surrounding areas, occupied Salado salamander habitat will be
protected from development and other threats.
Comment 3: One commenter stated their view that the Service did not
make the case that all areas considered as occupied critical habitat
met the Act's standard that they be occupied at the time of listing.
The September 15, 2020, proposed rule added several new critical
habitat units based on discoveries made since the original 2012
proposed designation, but the Service does not make the required
showing that these locations were occupied at the time of listing. The
September 15, 2020, proposed rule also did not establish that the areas
proposed for designation continue to be occupied. Instead, the proposal
acknowledged the difficultly in determining whether a salamander
population has been extirpated from a spring site due to these species'
ability to occupy the inaccessible subsurface habitat. The commenter
believes this approach is inadequate to establish occupancy.
Our Response: In our September 15, 2020, proposed rule, we explain
the evidence for the inclusion of the new proposed critical habitat
units, and we conclude that the additional areas of proposed critical
habitat were occupied at the time of listing (see 85 FR 57583).
Additionally, we state in our September 15, 2020, proposed rule that as
critical habitat units were shifted from the Georgetown salamander to
the Salado salamander, based on Devitt et al. (2019, entire), critical
habitat units for both species were re-numbered. New locations for
Salado salamander were also discovered through sampling efforts after
January 25, 2013. Georgetown and Salado salamanders are restricted to
subterranean spaces in aquifers and on the surface to springs and
associated outflow where groundwater emerges from the underlying
aquifer. They are not capable of unaided, long-distance surface
dispersal between isolated springs given their aquatic life history.
Most springs in Bell and Williamson Counties and their underlying
aquifer connections are historical landscape features that predate
European settlement of the North American continent (Brune 1981, pp.
65-69, 473-476). Therefore, we conclude that these Salado salamander
sites were occupied at the time of listing and we are designating
critical habitat in specific areas within the geographical area
occupied by the species at the time of listing that contain the
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protection, as directed by the Act.
We are required to make determinations based on the best available
information, and the Devitt et al. (2019) peer-reviewed publication
used to inform the September 15, 2020, revisions to our proposed
critical habitat for these species, as well as this final rule
designating critical habitat for these species, is the best available
information.
Comment 4: One commenter stated that because the September 15,
2020, proposed rule contained all known locations of the salamander
species in the proposed critical habitat designation, it is contrary to
the statement in section 3 of the Act that critical habitat shall not
include the entire geographical area which can be occupied by the
threatened or endangered species (16 U.S.C. 1532(5)(C)).
Our Response: Section 3(C) of the Act says ``Except in those
circumstances determined by the Secretary, critical habitat shall not
include the entire geographical area which can be occupied by the
threatened or endangered species.'' The Secretary has the discretion to
designate the entire geographic area that can be occupied. However, the
critical habitat we are designating in this rule does not include the
entire geographical area which can be occupied by the species. We are
designating only those specific areas within the geographical area
occupied by the species, at the time it was listed in accordance with
the provisions of section 4 of the Act, on which are found those
physical or biological features that are essential to the conservation
of the species.
Comment 5: Some commenters stated their belief that designating
critical habitat for these two species is not prudent or is not
determinable. These commenters believed that the two salamander species
are better protected under the existing, local efforts than they would
be with the proposed critical habitat designation. In their view, the
existing conservation efforts for the species exceeds any conservation
benefits that would be conferred if critical habitat were finalized.
Our Response: We appreciate and acknowledge all the hard work
conservation partners and residents have voluntarily undertaken to help
conserve both species of salamander. However, in our proposed rule we
concluded that critical habitat is both prudent and determinable for
Georgetown salamander and Salado salamander (85 FR 57578; September 15,
2020), and we affirm those determinations in this final rule.
Based on the best available scientific evidence at the time of this
final rule, the surface critical habitat component was delineated by
starting with the spring point locations that are occupied by the
salamanders and extending a line upstream and downstream 262 ft (80 m),
because this is the farthest a member species of the Eurycea salamander
subgenus Septentriomolge (which includes the Georgetown and Salado
salamanders) has been observed from a spring outlet. The subsurface
critical habitat was delineated based on evidence that indicates a
Eurycea salamander population can extend at least 984 ft (300 m) from
the spring opening through underground conduits. We defined an area as
occupied based upon the reliable observation of a salamander species by
a knowledgeable
[[Page 46539]]
scientist and cited within published articles, unpublished reports, and
Service files including Hunter and Russell (1993, p. 7-8), Pierce and
Wall (2011, pp. 2-3), Chippindale et al. (2000, pp. 39-43), Diaz and
Montagne (2017, p. 6), Cambrian Environmental (2018b, pp. 5-6), Devitt
et al. (2019a, pp. 2,626, 2,628), and Devitt et al. (2019b, pp. 16-18).
Although we do not have data for every site indicating that a
salamander was observed 262 ft (80 m) downstream, we find that it is
reasonable to consider the downstream habitat occupied based on the
dispersal capabilities observed in individuals of very similar species.
See Criteria Used To Identify Critical Habitat, below, for more
information.
Comment 6: Some commenters questioned the Service's reliance on the
proposed 262-ft (80-m) surface designation for its divergence from
available literature, incorrect assumption of identical spring sites,
and significant discrepancies between the text description and proposed
maps. Commenters noted that, the Service states Salado salamanders are
rarely found more than 66 ft (20 m) from a spring source and are most
abundant within the first 16 ft (5 m). Therefore, the Service's
proposed 262-ft (80-m) radius surface designation is inconsistent with
the best available science.
Our Response: When determining surface critical habitat boundaries,
we were not able to delineate specific stream segments on maps due to
the small size of the streams. Therefore, we drew a circle with a 262-
ft (80-m) radius, from spring point locations, representing the extent
the surface population of the site is estimated to exist upstream and
downstream. Georgetown and Salado salamanders are generally found
within 66 ft (20 m) of a spring source (TPWD 2011, p. 3; Diaz et al.
2015, p. 7) but several studies have documented these salamanders
beyond that distance up to 194 ft (59 m) away (Pierce et al. 2011a, p.
4; Pierce 2015, p. 13; Pierce 2016, pp. 14, 17, 19; Gutierrez et al. p.
386). In addition, the closely related Jollyville Plateau salamander
has been observed 262 ft (80 m) from a spring opening (Bendik et al.
2016, p. 9). Given the close taxonomic relationship of the Georgetown,
Jollyville Plateau, and Salado salamanders we applied that distance
(i.e., 262 ft (80 m) in designating surface critical habitat
boundaries. Surface critical habitat includes the spring outlets and
outflow up to the ordinary high water mark (the average amount of water
present in nonflood conditions, as defined in 33 CFR 328.3(e)) and 262
ft (80 m) of upstream and downstream habitat (to the extent that this
habitat is ever present), including the dry stream channel during
periods of no surface flow. Upland habitat adjacent to streams, left
inside surface critical habitat boundaries shown on the maps of this
final rule, have been excluded by text in the final rule and are not
designated as critical habitat. Therefore, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the designated subsurface or surface critical habitat (see Application
of the ``Destruction or Adverse Modification'' Standard, below). We
defined an area as occupied based upon the reliable observations of
Georgetown and/or Salado salamander species by a knowledgeable
scientist and cited within published articles, unpublished reports, and
Service files including Hunter and Russell (1993, p. 7-8), Pierce and
Wall (2011, pp. 2-3), Chippindale et al. (2000, pp. 39-43), Diaz and
Montagne (2017, p. 6), Cambrian Environmental (2018b, pp. 5-6), Devitt
et al. (2019a, pp. 2,626, 2,628), and Devitt et al. (2019b, pp. 16-
18).Although we do not have data for every site indicating that a
salamander was observed 262 ft (80 m) downstream, we conclude it is
reasonable to consider the downstream habitat occupied based on the
dispersal capabilities observed in individuals of the same species or
very similar species. See Criteria Used To Identify Critical Habitat,
below, for more information.
Comment 7: The Bell County Adaptive Management Coalition and others
commented that the use of a 984-ft (300-m) subsurface designation is
not consistent with available literature, and provided two references
in support of this conclusion, from the Clearwater Underground Water
Conservation District and Baylor University. The 984-ft (300-m)
subsurface designation, as delineated by the Service, is not consistent
with Baylor University research, which indicated that the geology and
hydrology of the subsurface feature (i.e., springshed) do not match the
delineations proposed by the Service. Much of the subsurface
delineations do not actually contribute to the spring flow for the
occupied sites; thus, their inclusion within critical habitat would
improperly subject those areas to the same regulations as areas that
actually have an impact on the salamander and its habitat.
Our Response: The commenter suggested that we should restrict the
subsurface critical habitat designation to an area that they defined as
the contributing springshed. We reviewed the information provided by
the Clearwater Underground Water Conservation District and Baylor
University and determined that there is not enough information to
modify our original 984-ft (300-m) circular subsurface designation for
these sites without further long-term study. Wong and Yelderman (2015,
pp. 8-15) found connectivity between Stagecoach Inn Cave well and all
the down-gradient springs indicating the Salado salamander, and other
mobile aquatic organisms, can move throughout the entire spring system
and it should be grouped as one system. If toxins entered Salado Creek,
groundwater flows could carry the toxins to occupied salamander
springs. The proposed 984-ft (300-m) radius subsurface designation is
an area that represents where salamander populations are likely to
exist, which is further supported from studies conducted on the Austin
blind salamander that showed their presence throughout the entire
underground Barton Springs complex (Dries 2011, pers. comm.). Regarding
the Coalition's concern about holding areas outside the springshed to
the same standards as within the springshed, Salado Creek is a gaining
stream (i.e., reaches of a stream where groundwater exits the
subsurface and contributes to stream flow) near downtown Salado.
Therefore, pollution introduced to Salado Creek could enter the aquifer
system providing water to springs occupied by the Salado salamander.
The Coalition identified Edwards Aquifer Recharge Zone and applied
the springshed boundary mapped by Yelderman (2013, pp. 6-8) and Wong
and Yelderman (2015, p. 4) to show a simplified groundwater flow system
that indicates groundwater recharge to the spring is limited to
southwestern sources. This approach was used to create a management
area, which is a section of the watershed that they propose can impact
the springs occupied by the Salado salamander. However, the Wong and
Yelderman (2015, p. 22) study that the Coalition used to delineate this
area also concluded that Salado Creek and nearby springs receive waters
from the north bank (i.e., Rock Spring), that is sourced from
groundwater from the north and south of Salado Creek. Therefore,
activities such as spills of hazardous materials north and south of
Salado Creek could adversely impact groundwater, nearby springs, and
salamander habitat. While we recognize
[[Page 46540]]
the uncertainty inherent in identifying subsurface habitat boundaries
for these two salamander species, we used the best available scientific
information to designate critical habitat, as required by the Act. A
fuller understanding of all of the subsurface flow patterns and
connections for every salamander site will require numerous years of
research. The subsurface critical habitat was delineated based on
evidence that indicates that a Eurycea salamander population can extend
at least 984 ft (300 m) from the spring opening through underground
conduits.
Comment 8: One commenter stated support for designating as
unoccupied critical habitat reaches beyond the current 262-ft (80-m)
extent of proposed critical habitat downstream and upstream of known
salamander-occupied spring openings, and extending that to 1,640 ft
(5,381 m) instead based on Bendik et al. (2016, p. 9). These streambeds
and riverbeds trace the outlines of likely remaining and/or restorable
subterranean aquatic connectivity for these salamanders. Maintaining
such connectivity or restoring it where feasible is essential to their
conservation and eventual recovery. Bendik et al. (2016, p. p. 9)
indicates that the closely related Jollyville Plateau salamanders along
Bull Creek that uses habitats as far as 1,640-ft (5,381-m) from its
epigean habitat. Designation of the full 1,640-ft (5,381-m) distance
downstream and upstream as critical habitat would provide regulatory
and educational means to manually rehabilitate degraded streambeds (for
example, through revegetation) and to decrease human extraction of
groundwater (for example, through retirement of agricultural lands) in
order to effectuate conservation of these species, which is precisely
the Act's purpose for critical habitat designation.
Our Response: We did not consider unoccupied areas for critical
habitat because we determined that occupied areas were sufficient to
conserve the species. In accordance with section 3(5)(A) of the Act, we
are designating critical habitat in specific areas within the
geographical area occupied by the species at the time of listing that
contain the physical or biological features essential to the
conservation of the species and which may require special management
considerations or protection. The Service has developed a preliminary
long-term conservation strategy that represents the overall objectives
and actions that we believe are needed to conserve the salamanders
(Service 2013, entire). The purpose of the strategy is to provide
initial guidance for conservation and threat alleviation. In general,
this includes measures aimed at reducing or removing threats to the
species and ensuring self-sustaining populations remain in the wild.
The unique hydrology where that Jollyville Plateau salamander
observation was made leads us to conclude that it should not be
extrapolated to the Georgetown and Salado salamanders. The area of Bull
Creek where that observation was made is known for its alluvial
deposits (COA 2012, p. 6), which discharge spring water through non-
obvious seeps, instead of open springheads (SWCA 2012, p. 77). This
type of hydrology appears to create suitable habitat for salamanders
along long stretches of stream, rather than a short stretch of
springwater-influenced habitat following an open spring outlet (Bendik
2013, pers. comm.). We have no information indicating that any
Georgetown or Salado salamander sites function in the same manner as
these Bull Creek alluvial resurgence areas. As currently known,
Georgetown and Salado salamanders do not have access to the same extent
or nature of aquatic surface habitat as the Jollyville Plateau
salamander (Pierce at al. 2010, pp. 14-15). Therefore, we conclude that
the 1,640 feet (500 meters) distance traveled by a Jollyville Plateau
salamander is an observation unique to the hydrological setting and
does not apply to Georgetown or Salado salamander sites.
The purpose of designating critical habitat is to identify those
areas needed for a species' recovery. In this case, we designated
habitat occupied by the species at the time it was listed on which are
found those physical or biological features essential to the
conservation of the species and which may require special management
considerations or protection. While our designation of critical habitat
does not remove the threat from urban development, for example, it does
identify those areas that are critical to the conservation of the
species, which provides awareness about occupied sites to nearby
landowners and land managers, and it informs them that they should
consider their impacts on those sites.
A critical habitat designation does not signal that habitat outside
the designated area is unimportant or may not to be managed or
conserved for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects outside of
designated critical habitat areas may still result in jeopardy or in
adverse effects on areas within critical habitat, if those activities
are affecting the critical habitat.
Comment 9: One commenter provided a number of publications that
they thought should be considered and referenced in the final rule.
Our Response: The contributions stakeholders, academic researchers,
and others have made to advance knowledge on the Georgetown and Salado
salamanders and their habitat is valued by the Service. Where relevant
and appropriate, we have incorporated information from these efforts
and cited peer-reviewed articles and unpublished reports pertaining to
salamander dispersal, taxonomy, and water quality parameters including
Cambrian Environmental (2016; 2017; 2018; 2019; 2020), Diaz et al.
(2016; 2017), Diaz et al. (2020), Gutierrez et al. (2018), Jones et al.
(2020), Pierce et al. (2014), and Wall et al. (2020). Other
publications cited by the commenter provide valuable information on the
life history (e.g., temporal activity and tail loss) of the Georgetown
and/or Salado salamanders but were not directly relevant to this final
critical habitat rule or more current information was available and
include Biagas et al. (2012), McEntire and Pierce (2015), Norris et al.
(2012), and Pierce and Gonzalez (2019). See Physical or Biological
Features Essential to the Conservation of the Species, below, for more
information.
Comment 10: One commenter opined that the Service does not identify
the physical or biological features essential to the conservation of
the Georgetown and Salado salamanders with an appropriate level of
specificity as required by 50 CFR 424.12(b)(1)(ii). Although the
Service describes each of the physical and biological features in some
detail, the Service used studies relating to different species, the
Jollyville Plateau salamander and Barton Springs salamander, in an
attempt to infer further parallels as to the habitat requirements for
the Georgetown and Salado salamanders. In the commenter's view,
inferring parallels between species does not
[[Page 46541]]
comport with the contemporary scientific practice or the applicable
legal standard because it's not specific to the conservation of the
Georgetown and Salado salamanders.
Our Response: We conclude that the Jollyville Plateau salamander is
an appropriate surrogate for determining habitat requirements for the
Georgetown and Salado salamanders. The Jollyville Plateau, Georgetown,
and Salado salamander species are within the same genus, are entirely
aquatic throughout each portion of their life cycles, respire through
gills, inhabit water of high quality with a narrow range of conditions,
depend on water from the Edwards Aquifer, and have similar predators.
Both the Jollyville Plateau and Georgetown salamanders have cave
populations that live exclusively in subterranean habitats. Certain
populations of the Salado salamander also appear to spend more time
inhabiting subterranean habitat than surface habitats. These three
biologically and ecologically similar species also form a related clade
of Eurycea salamanders in the Northern Segment of the Edwards Aquifer,
distinct from other Eurycea species in southern portions of the Edwards
Aquifer. Peer reviewers of earlier proposed and final rules for the
Georgetown, Jollyville Plateau, and Salado salamanders have agreed that
it is acceptable to use and apply ecological information on closely
related species if species-specific information is lacking. Based on
this information, the best available scientific information supports
our conclusion that these species are suitable surrogates for each
other.
Comment 11: The September 15, 2020, proposed rule does not
demonstrate that the proposed critical habitat units meet the
definition of critical habitat. The Service proposes to designate
occupied areas, which, by statutory definition, must have the physical
and biological features essential to the conservation of the species
that may require special management. Although the Service describes
each of the physical and biological features in some detail, the
Service does not identify the physical or biological features essential
to the conservation of the Georgetown and Salado salamanders with an
appropriate level of specificity. Instead, the Service used studies
relating to a different species, the Jollyville Plateau salamander and
Barton Springs salamander, in an attempt to infer further parallels as
to the habitat requirements for the Georgetown and Salado salamanders.
Our Response: Occupied critical habitat always contains at least
one or more of the physical or biological features that provide for
some life-history needs of the listed species. However, an area of
critical habitat may not contain all physical or biological features at
the time it is designated, or those features or elements may be present
but in a degraded or less than optimal condition. In the case of a
highly urbanized salamander site, some physical or biological features
such as rocky substrate and access to the subsurface habitat may be
present, even if the water quality physical or biological feature is
not. We consider these sites to meet the definition of critical habitat
because they are occupied at the time of listing and contain those
physical or biological features essential to the conservation of the
species, which may require special management considerations or
protection. See also our responses to Comments 9 and 10, above.
Comment 12: One commenter stated that we should not designate
critical habitat for the Salado salamanders because public
identification of habitat could increase impacts to the species and its
habitat, in the form of site disturbance and harassment of the species.
Our Response: These sites are already publicly identified in
several survey reports, in descriptions in scientific papers, and in
our proposed critical habitat rules. The Service is not aware of any
trade in these species or general collection, other than research, that
would lead the Service to believe that there may be harm to the species
in designating critical habitat.
Comment 13: The Bell County Adaptive Management Coalition stated
that water quantity and quality degradation in Bell County is being
addressed through various actions such as regulations, ordinances, and
zoning. Because the Coalition has successfully managed the quality of
water associated with the Salado salamander and its habitat, they did
not agree that water quality and quantity degradation should be
considered as a factor for critical habitat designation. The result is
managed spring flow with sufficient water quantity for the Salado
salamander, invalidating the need for critical habitat designation.
Our Response: We appreciate the efforts of Bell County to address
water quality and quantity issues within the range of the Salado
salamander. Bell County's efforts have ameliorated some of the threats
to the Salado salamander and have provided protection to some of the
critical habitat units. However, additional threats to the species
remain, including increased impervious cover, chemical spills from
existing and future roadways, and leakage from sewer lines and septic
systems.
The Service is not relieved of its statutory obligation to
designate critical habitat based on the contention that designation
will not provide additional conservation benefit. In Ctr. for
Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003),
the court held that the Act does not direct us to designate critical
habitat only in those areas where ``additional'' special management
considerations or protection is needed. We find that the areas in
question meet the definition of critical habitat in the Act.
Special management considerations that will ameliorate threats to
surface habitat include, but are not limited to, protecting the quality
of cave and spring water by implementing comprehensive programs to
control and reduce point sources and non-point sources of pollution,
minimizing the likelihood of pollution events or surface runoff from
existing and future development that would affect groundwater quality,
protecting groundwater and spring flow quantity, and measures to
prevent surface habitat destruction or degradation (e.g., exclusion of
cattle and feral hogs). Some of the management activities listed above,
such as those that protect spring flow and groundwater quality, protect
both surface and subsurface habitats, as these are interconnected.
Additional management activities that could ameliorate threats that
are specific to subsurface habitat include, but are not limited to, the
development and implementation of void mitigation plans for
construction projects to prevent impacts to salamanders in the event of
severed aquifer conduits or interrupted groundwater flow paths, site-
specific plans to prevent changes to subsurface water flow from
construction activities, environmental monitors during construction,
excavation, and drilling activities to monitor spring flow, and post-
construction monitoring of spring flow.
Comment 14: Some commenters believe that the Service should have
determined that critical habitat for the species is not prudent because
``designation is not wise, such as when a designation would apply
additional regulation but not further the conservation of the species''
(see p. 84 FR 45041). The State, Williamson County, and its residents
have voluntarily restricted their activities to degrees far more
protective than an added layer of regulation under the Act
[[Page 46542]]
would achieve. The Texas Commission on Environmental Quality's Edwards
Aquifer rules were enacted to prevent water quality degradation within
the Edwards Aquifer where the salamanders reside. Those rules require,
among other things, that any construction-related activity occurring
over the Edwards Aquifer must first prepare detailed studies and
reports and then employ certain best management practices to prevent
pollution of the surface water and groundwater. The Georgetown water
quality ordinance heavily restricts activity in a tiered structure
within 262-ft (80-m) and 984-ft (300-m) of salamander occupied springs.
The City of Georgetown's water quality ordinance provides protections
that exceed what would be achieved by the proposed critical habitat,
but without the additional regulatory layer and associated delays and
costs that would result from a critical habitat designation. The
Georgetown water quality ordinance has been strictly implemented, and
the success of such efforts is evidenced by the monitoring results
voluntarily undertaken by the Williamson County Conservation
Foundation. Further, numerous other voluntary conservation actions are
in place to address the surface and subsurface concerns identified in
the September 15, 2020, proposed rule. These actions demonstrate that
significant and existing conservation efforts exceed the protections
that would otherwise be afforded by a critical habitat designation. A
critical habitat designation would not further the conservation of the
species, but it would add significant regulatory processes resulting in
project delays and increased costs.
Our Response: See our response to Comment 13. Again, we appreciate
and acknowledge all the hard work conservation partners and residents
have voluntarily undertaken to help conserve both species of
salamander. However, we have concluded that critical habitat is prudent
for Georgetown salamander and Salado salamander (85 FR 57578). In the
final listing rule, we identified destruction, modification, or
curtailment of habitat or range as threats to the species and include
increases in impervious cover and infrastructure (e.g., roadways and
sewage lines) that accompany urbanization and degrade water quality,
quarrying that may damage subterranean habitat, and installation of
impoundments that alter surface habitat. These threats can be addressed
under section 7(a)(2) of the Act.
The buffer zones described in the City of Georgetown's ordinance
lessen the potential for further water quality degradation, but they do
not remove the threat posed by existing development. Buffer zones also
do not address threats to water quantity. The threat of chemical spills
from existing highways, sewer lines, and septic systems still exists.
We acknowledge that some Georgetown salamander, and now Salado
salamander, sites in Williamson County have been monitored since 2008.
However, only a small number of sites occupied by those salamanders
have been regularly monitored for water quality and salamander
abundance. Data are lacking for many springs occupied by the Georgetown
salamander as well as additional sites for the Salado salamander.
Available monitoring data do not reflect the potential for individual
site variation or depict the range of landscape or habitat conditions
(e.g., degree of urbanization or age of development) within which the
occupied springs occur.
Comment 15: One commenter stated that the Service should explain
how special management may be required for the biological and physical
features when describing each proposed critical habitat unit. Courts
have interpreted the special management provision to mean that the
Service must provide an analysis explaining how the biological and
physical features in the proposed critical habitat area may require
special management.
Our Response: On the contrary, in Arizona Cattle Growers
Association v. Kempthorne, the courts stated that ``. . . the statute
does not require anything more than a finding that the physical and
biological features themselves . . . may require special management.''
and the Service ``. . . has fulfilled its lone requirement . . .'' by
making such a finding that an area(s) may require special management
(534 F. Supp. 2d. 1013, 1031, D. Ariz. 2008). The court made clear in
its finding that the Service needs to look at whether the physical or
biological features may require special management considerations. Each
unit description identifies the physical or biological features in the
unit and identifies which special management considerations or
protections may be needed for that unit, fulfilling this requirement.
Please see unit descriptions and Special Management Considerations or
Protections, below, for a description of the management needs of the
physical or biological features.
Comment 16: Some commenters requested that the final rule address
the effects to the Georgetown and Salado salamanders from nitrates, as
we have done in past rules (77 FR 50768; 79 FR 10236), because
salamanders might be experiencing impairments to their respiratory,
metabolic, and feeding capabilities as a result of high nitrate
concentrations.
Our Response: Nutrient input, such as nitrogen, may affect the
aquatic habitats inhabited by the Georgetown and Salado salamanders
(Gomez et al. 2020, entire). Nitrate, ammonia, total dissolved solids,
and total suspended solids can increase in watersheds that encompass
residential development, golf courses, and other human activities. The
February 24, 2014, final rule listing the Georgetown and Salado
salamanders as threatened species (79 FR 10236) reviewed the potential
impacts of nitrates on amphibians and noted higher levels of this
substance at some salamander locations. At this time, we lack
sufficient information to specifically detail a range of nitrate levels
that may affect Georgetown and Salado salamanders, and we therefore do
not describe them under Physical or Biological Features Essential to
the Conservation of the Species in this rule.
Comment 17: In the September 15, 2020, proposed rule, the Service
cited a single paper (Pierce et al. 2010) that primarily reports one
year of water quality data at Swinbank Spring. Water quality data
pertinent to these species can also be found in additional peer-
reviewed, published manuscripts as well as numerous reports. These
collective reports and publications identify a much wider range of
appropriate water conditions than included in the September 15, 2020,
proposed rule. The Service did not rely on the best available
scientific information when defining water conditions that are
essential to the conservation of the two species. One commenter stated
that our analysis of the negative effects of elevated water conductance
on the Georgetown and Salado salamanders was flawed because we based
our analysis on research conducted on the Jollyville Plateau
salamander. Pierce et al. (2010, p. 294) studied a different species of
salamander with different habitat requirements and did not indicate
that conductance of 604 to 721 micro-Siemens per centimeter ([micro]S/
cm) was an essential requirement for the Georgetown salamander, as the
Service stated in the proposed rule.
Our Response: Based on comments, scientific research, and water
quality monitoring data, we have updated text in this final rule
regarding water quality parameters to include temperature, dissolved
oxygen, and specific conductance. See Physical or Biological Features
Essential to the Conservation of
[[Page 46543]]
the Species, below, for more information.
Comment 18: Some commenters stated that our economic analysis did
not accurately capture impacts to tourism or development in Bell and
Williamson counties. Commenters stated that the Village of Salado
relies on the tourism industry and receives approximately 75,000
visitors per year, or 30 times the number of people living in Salado
and believed there is serious potential for this industry to be
negatively impacted by the proposed designation. In addition,
development in surrounding areas may experience increased restrictions
and negative impacts to property values. The designation of critical
habitat may also cause delays in public safety and education projects.
For example, if a bridge is not up to standards, and the bridge's new
construction is tied to Federal nexus funding, then there will be
additional costs and delays from section 7 consultation. Commenters
anticipate the impact to Bell and Williamson Counties to be a much
larger estimate than the described $38,500 per year.
The commenters stated that the draft economic analysis' estimate of
$38,500 per year conclusion did not to acknowledge the stigma that
arises when an area is designated as critical habitat. As acknowledged
by the Fifth Circuit, a critical habitat designation creates an
economic stigma that affects property values, even where the
designation affects non-Federal lands and does not presently have a
Federal nexus. This cost is not mentioned or captured anywhere in the
September 15, 2020, proposed rule. Where there is a Federal nexus, the
designation of critical habitat can trigger formal consultation where
consultation could otherwise be avoided through the implementation of
best management practices. Further, critical habitat can prompt a
formal consultation where informal consultation would otherwise be
appropriate. Consultation, itself, imposes costs and takes time, and a
critical habitat designation adds another layer of analysis. In some
instances, the Service seeks additional conservation or restoration
measures based on adverse modification. All of these processes,
measures, and delays can have significant costs to a project proponent.
Our Response: We revised the economic analysis based on several
comments; the final economic analysis is available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R2-ES-2020-0048. As directed
by the Act, we proposed as critical habitat those areas occupied by the
species at the time of listing and that contain the physical or
biological features essential to the conservation of the species, which
may require special management considerations or protection. Section 3
of the economic analysis outlines the substantial baseline protections
currently afforded the Georgetown and Salado salamanders throughout the
proposed designation (IEc 2021, p. 7). These baseline protections
result from the listing of the Georgetown and Salado salamanders under
the Act. As a result of these protections, the economic analysis
concludes that incremental impacts associated with section 7
consultations for the Georgetown and Salado salamanders is likely
limited to additional administrative effort. The analysis forecasts
future section 7 consultation activity based on consultations for the
Georgetown and Salado salamanders that have occurred since its listing
in 2014. Using these historical consultation rates and applying
estimated consultation costs presented in Exhibit 3 of the analysis
(IEc 2021, p. 11), we expect that the additional administrative costs
incurred by critical habitat designation will not exceed $38,500 in a
given year.
The Service anticipates conservation measures provided to address
impacts to occupied critical habitat areas will be the same as those
recommended to address impacts to the species because the habitat
requirements of the Georgetown and Salado salamanders are closely
linked to the survival, growth, and reproduction of these species,
which are present year-round in their spring, stream, cave, and
subterranean habitats. As such, the economic analysis of the critical
habitat designation does not anticipate that the designation will
result in new conservation efforts for the species that would not
already occur due to the listing of the species in designated critical
habitat areas. Therefore, critical habitat designation for the
Georgetown and Salado salamanders is not anticipated to result in
additional costs for development or other infrastructure projects other
than administrative costs to address critical habitat in section 7
consultations. We also updated our economic analysis to further
elaborate on this topic (IEc 2021).
The Act does not authorize the Service to regulate private actions
on private lands. Critical habitat designation also does not establish
specific land management standards or prescriptions, although Federal
agencies are prohibited from carrying out, funding, or authorizing
actions that would destroy or adversely modify critical habitat.
Critical habitat receives protection under section 7 of the Act through
the requirement that Federal agencies ensure, in consultation with the
Service, that any action they authorize, fund, or carry out is not
likely to result in the destruction or adverse modification of critical
habitat. The designation of critical habitat does not affect land
ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act apply, but even in the event of a destruction or adverse
modification finding, the obligation of the Federal action agency and
the landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid destruction or
adverse modification of critical habitat.
Most of the costs identified by the commenter are costs that are a
result of the listing of the Georgetown and Salado salamanders and are
not attributable to the designation of critical habitat for the
species. The economic analysis acknowledges that the two counties in
which the critical habitat designation spans are experiencing
significant development pressure. The Service anticipates conservation
recommendations provided to address impacts to the occupied critical
habitat will be the same as those recommended to address impacts to the
species because the habitat requirements of the Georgetown and Salado
salamanders are closely linked to the survival, growth, and
reproduction of these species, which are present year-round in their
spring, stream, cave, and subterranean habitats. As such, the economic
analysis of critical habitat designation does not anticipate that the
designation will result in new conservation efforts for the species
that would not already occur due to the listing of the species in
designated critical habitat areas. As such, this critical habitat
designation for the Georgetown and Salado salamanders is not
anticipated to result in additional restrictions or requirements for
development or other infrastructure projects. Therefore, critical
habitat designation for the Georgetown and Salado salamanders is not
anticipated to result in additional costs for development or other
infrastructure
[[Page 46544]]
projects other than administrative costs to address critical habitat in
section 7 consultations.
Comment 19: One commenter believed that our reclassification of
five spring sites previously considered to be Georgetown salamanders as
Salado salamander sites results in economic impacts due to the
resulting changes in application of the 4(d) rule for the Georgetown
salamander, which incorporates the City of Georgetown's water quality
ordinance. This revision means that members of the regulated community
that have previously relied on the 4(d) rule and ordinance are now
exposed to potential section 9 violations.
Our Response: The costs identified by the commenter are costs that
are a result of the listing and 4(d) rule for the Georgetown and Salado
salamanders and are not attributable to the designation of critical
habitat for the species. This critical habitat designation in no way
changes the 4(d) rule for the Georgetown salamander referenced by the
commenter.
Comment 20: Williamson County Conservation Foundation commented
that the Service did not conduct an exclusion analysis consistent with
its authority under the Act's section 4(b)(2). The broadly drawn
proposed critical habitat units confer little benefit to the species at
great detriment to the County and its residents. The existing
protections provide significant upside to both the species and the
County's residents, while the September 15, 2020, proposed rule would
yield significant downsides and little, if any, benefit to the two
species. The benefits of excluding the proposed critical habitat areas
far outweigh the benefits of inclusion. The Service should redo its
economic analysis considering the myriad of impacts discussed above and
conduct an exclusion analysis.
Our Response: For exclusion of an area from critical habitat
designation based on management, we look to our Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act (81 FR
7226; February 11, 2016) that outlines measures we consider when
excluding any areas from critical habitat. Although we published
revised regulations that address section 4(b)(2) on December 18, 2020
(85 FR 82376), the revised regulation applies to critical habitat rules
for which a proposed rule is published after January 19, 2021. The
proposed rule for the Georgetown and Salado salamanders published on
September 15, 2020. Therefore, this rule is grandfathered from the
December 18, 2020 regulation.
The Service considers six elements when considering whether to
exclude any areas from critical habitat: (1) Partnerships and
conservation plans; (2) conservation plans permitted under section 10
of the Act; (3) national security and homeland security impacts, and
military lands; (4) Tribal lands; (5) Federal lands; and (6) economic
impacts. We did not receive any request for exclusion of any specific
critical habitat units in Williamson County and the Williamson County
Conservation Foundation. No permitted plans under section 10 of the Act
exist within the county, we are not aware of any impacts to national
security or homeland security, and the designation does not include
Tribal or Federal lands within the county. The partnerships and
voluntary conservation plans cited by the Foundation do not remove the
threat posed by existing development or the threat of chemical spills
from existing highways, sewer lines, and septic systems. The human
population in Williamson County is projected to increase by 161
percent, between 2022 and 2050 (Texas Demographic Center 2021). The
associated increase in urbanization is likely to result in continued
impacts to water quality that require special management of the habitat
to address. Therefore, we did not conduct a weighing analysis to
determine whether the benefits of exclusion outweigh the benefits of
inclusion for other areas. Please see Exclusions, below, for a
discussion of the areas we are excluding from the final designation.
Finally, the Service updated its economics analysis (IEc 2021,
entire) based on public comment provided during the comment period
associated with the proposed critical habitat destination (85 FR
57578).
Comment 21: One commenter stated that the September 15, 2020,
proposed rule did not properly follow the process by which the
Secretary should take into account economic and other impacts and
exclude areas from critical habitat if she determines that the benefits
of exclusion outweigh the benefits of inclusion.
Our Response: Our regulations state that ``The Secretary will make
a final designation of critical habitat based on the best scientific
data available, after taking into consideration the probable economic,
national security, and other relevant impacts of making such a
designation in accordance with Sec. 424.19'' (50 CFR 424.12(a). In
accordance with 50 CFR 424.19, ``The Secretary has the discretion to
exclude any particular area from critical habitat upon a determination
that the benefits of such exclusion outweigh the benefits of specifying
the particular area as part of the critical habitat.'' It is the
Service's practice to propose all lands that meet the definition of
critical habitat and determine whether any lands should then be
excluded under Section 4(b)(2) of the Act in the final rule. We
received further information during the public comment period on the
September 15, 2020, proposed rule, and after conducting a weighing
analysis, we are excluding Salado salamander units 1, 2, and 3 from
critical habitat designation in this rule. Please see Exclusions,
below, for a discussion of the areas we are excluding from the final
designation.
Comment 22: One commenter disagreed with the methodology in the
draft economic analysis to limit the assessment of economic impacts to
those solely attributable to the critical habitat designation (i.e.,
the baseline approach). They opined that the Service's use of the
baseline approach is not only illegal, it prejudices landowners
affected by the designation, as it significantly understates the
designation's economic impact and ignores the cumulative impact of
adding the designation's costs to those that landowners already bear
because of the salamanders' listing. The commenter believed that we
should analyze all of the economic impacts of a critical habitat
designation, regardless of whether those impacts are attributable co-
extensively to other causes, such as listing the species. The commenter
further opined that the Service should conduct a new economic analysis,
using the co-extensive approach.
Our Response: Because the primary purposes of the economic analysis
are to facilitate the mandatory consideration of the economic impact of
the designation of critical habitat, to inform the discretionary
section 4(b)(2) exclusion analysis, and to determine compliance with
relevant statutes and Executive Orders, the economic analysis focuses
on the incremental impact of the designation. The economic analysis of
the designation of critical habitat for the Georgetown and Salado
salamanders follows this incremental approach. The Service acknowledges
that significant debate has occurred regarding whether assessing the
impact of critical habitat designations using the incremental approach
is appropriate, with several courts issuing divergent opinions. Most
recently, the U.S. Ninth Circuit Court of Appeals concluded that the
incremental approach is appropriate, and the U.S. Supreme Court
declined to hear the case (Home Builders Association of Northern
California v. United States Fish and Wildlife Service, 616 F.3d 983
(9th Cir.
[[Page 46545]]
2010), cert. denied, 179 L. Ed 2d 301, 2011 U.S. Lexis 1392, 79
U.S.L.W. 3475 (2011); Arizona Cattle Growers v. Salazar, 606 F.3d 1160
(9th Cir. 2010), cert. denied, 179 L. Ed. 2d 300, 2011 U.S. Lexis 1362,
79 U.S. L.W. 3475 (2011)). Subsequently, on August 28, 2013, the
Service published a final rule (78 FR 53058) revising our regulations
pertaining to impact analyses conducted for designations of critical
habitat under the Act; the regulations specify that the incremental
approach should be used (see p. 78 FR 53062 and 50 CFR 424.19(b)). We
updated our final economic analysis for this critical habitat
designation to further clarify these points (IEc 2021).
Section 4(b)(1)(A) of the Act states that the Secretary shall make
listing determinations ``solely on the basis of the best scientific and
commercial data available,'' which prevents the Service from factoring
in economic considerations when making a listing determination.
However, with regard to designating critical habitat, and specific to
designating critical habitat, section 4(b)(2) of the Act states that
the Secretary shall designate and revise critical habitat on the basis
of the best scientific data available and after taking into
consideration ``the economic impact, the impact on national security,
and any other relevant impact, of specifying any particular area as
critical habitat.'' The incremental approach, or ``baseline approach,''
is in accord with the language and intent of the Act. The regulations
at 50 CFR 424.19(b) state that the Secretary will consider impacts at a
scale that the Secretary determines to be appropriate and will compare
the impacts with and without the designation. The incremental approach
(baseline approach) compares the impacts with and without designating
the critical habitat, as opposed to with or without a listing
determination. We have concluded that an incremental approach is
consistent with the Act and with the Office of Management and Budget
(OMB) guidance and is the most logical way of analyzing impacts.
Lastly, the Service considered the economic impacts of the designation
of critical habitat in its economics analysis summarized in an updated
memorandum dated April 13, 2021, which is available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R2-ES-2020-0048.
Comment 23: One commenter stated that our economic analysis is
deficient because it failed to adequately measure reductions in the
value of private property, did not consider the costs likely to be
incurred by landowners in avoiding or defending against citizen
lawsuits to enforce other provisions of the Act, and ignored
incremental costs attributable to the avoidance of adversely modifying
the salamanders' habitat. The commenter recommended that we: (1)
Analyze or quantify how public perception of the critical habitat
designation will affect private property values within the designation;
(2) analyze the costs that may be incurred by landowners in avoiding
and defending against citizen lawsuits pursuant to section 11 of the
Act from environmental groups or neighbors alleging violations of the
Act's section 9 prohibition on take; and (3) correct the proposed
rule's erroneous assumption that any adverse modification of habitat
would necessarily jeopardize the species.
Our Response: First, the costs of litigation pursuant to section 11
citizen suit provisions alleging that a section 9 violation has
occurred are not attributable to the designation of critical habitat.
The Act does not contain any section 9 protections for critical
habitat. Secondly, as stated in the economic screening analysis
memorandum, the Service recognizes that, under certain circumstances,
critical habitat designations may affect private property values. The
memorandum describes that public attitudes about the limits and costs
that the Act may impose can cause real economic effects to the owners
of property, regardless of whether such limits are actually imposed.
This effect is sometimes referred to as a stigma effect. Over time, as
public awareness grows of the regulatory burden placed on designated
lands, the effect of critical habitat designation on properties may
subside. Because the economics literature on the subject is limited and
is species- and site-specific in nature, the likelihood and potential
magnitude of property value effects due to critical habitat designation
for the salamanders is uncertain. Lastly, and consistent with this
comment, the final economics screening memorandum clarifies that the
Georgetown salamander 4(d) rule at 50 CFR 17.43(e) exempts the
incidental take of Georgetown salamander if the take occurs on non-
Federal land from regulated activities that are conducted consistent
with the water quality protection measures contained in the City of
Georgetown (Texas) Unified Development Code (UDC), as endorsed by the
Service. As the 4(d) rule serves to reduce regulatory uncertainty for
these development activities, perceptional effects on land values may
be less likely to occur on these lands.
Comment 24: One commenter stated that we should conduct a NEPA
analysis in conjunction with the proposed designation of critical
habitat for the Georgetown and Salado salamanders, citing various case
law in support of their assertion. The commenter recommended that the
Service prepare an environmental assessment in conjunction with the
critical habitat designation.
Our Response: It is our position that, outside the jurisdiction of
the U.S. Court of Appeals for the Tenth Circuit, we do not need to
prepare environmental analyses pursuant to NEPA in connection with
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). This
critical habitat designation is outside the jurisdiction of the U.S.
Court of Appeals for the Tenth Circuit.
Comment 25: A commenter stated that the Service has not prepared an
initial regulatory flexibility analysis for the proposed critical
habitat designation as required by the Regulatory Flexibility Act (RFA;
5 U.S.C. 601 et seq.). The RFA requires that, whenever an agency
publishes a general notice of proposed rulemaking, as it has done here,
it must also ``prepare and make available for public comment'' an
``initial regulatory flexibility analysis.'' Thus, the commenter
recommended that the Service reissue the September 15, 2020, proposed
rule, after preparing the required initial regulatory flexibility
analysis and conduct a final regulatory flexibility analysis prior to
finalizing the designation.
Our Response: Under the RFA, Federal agencies are only required to
evaluate the potential incremental impacts of a rulemaking on directly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried by the agency is not
likely to adversely modify critical habitat. Therefore, only Federal
action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is the
Service's position that only Federal action agencies will be directly
regulated by this designation. Therefore, because Federal agencies are
not small entities, the Service may certify that this critical
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habitat designation will not have a significant economic impact on a
substantial number of small entities. Because certification is
possible, no regulatory flexibility analysis is required.
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) Which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
specific features that are essential to support the life-history needs
of the species, including, but not limited to, water characteristics,
soil type, geological features, prey, vegetation, symbiotic species, or
other features. A feature may be a single habitat characteristic, or a
more complex combination of habitat characteristics. Features may
include habitat characteristics that support ephemeral or dynamic
habitat conditions. Features may also be expressed in terms relating to
principles of conservation biology, such as patch size, distribution
distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we may designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include any generalized conservation
strategy, criteria, or outline that may have been developed for the
species; the recovery plan for the species; articles in peer-reviewed
journals; conservation plans developed by States and counties;
scientific status surveys and studies; biological assessments; other
unpublished materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for
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recovery of the species. Areas that are important to the conservation
of the species, both inside and outside the critical habitat
designation, will continue to be subject to: (1) Conservation actions
implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, HCPs, or other species
conservation planning efforts if new information available at the time
of those planning efforts calls for a different outcome.
Prudency and Determinability
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. In our proposed critical habitat rule (85 FR 57578; September
15, 2020), we found that designating critical habitat is both prudent
and determinable for the Georgetown and Salado salamanders. In this
final rule, we reaffirm those determinations.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Based on public comment, we separated the summary of essential
physical or biological features (formerly primary constituent elements)
for these salamander species into surface and subsurface habitat
categories and added additional details in order to clarify habitat
needs of both species. We derive the specific physical or biological
features essential to the conservation of the Georgetown and Salado
salamanders from studies of the species' habitat, ecology, and life
history as described in the August 22, 2012, proposed rule (77 FR
50768), and in the information presented below. Additional information
can be found in the final listing rule for the Georgetown and Salado
salamanders (79 FR 10236; February 24, 2014).
Observational and experimental studies on the habitat requirements
of Georgetown and Salado salamanders are rare. In the field of aquatic
ecotoxicology, it is common practice to apply the results of
experiments on common species to other species that are of direct
interest (Caro et al. 2005, p. 1,823). In addition, the field of
conservation biology is increasingly relying on information about
surrogate species to predict how related species will respond to
stressors (for example, see Caro et al. 2005 pp. 1,821-1,826; Wenger
2008, p. 1,565). In instances where information was not available for
the Georgetown and Salado salamander specifically, we have provided
references for studies conducted on similarly related species that
inhabit the same or nearby segments of the Edwards Aquifer, such as the
Jollyville Plateau salamander (i.e., Northern Segment) and Barton
Springs salamander (Barton Springs Segment; Eurycea sosorum), which
occur within the central Texas area, and other salamander species that
occur in other parts of the United States. The similarities among these
species may include: (1) A clear systematic (evolutionary) relationship
(for example, members of the Family Plethodontidae); (2) shared life-
history attributes (for example, the lack of metamorphosis into a
terrestrial form); (3) similar morphology and physiology (for example,
the lack of lungs for respiration and sensitivity to environmental
conditions); (4) similar prey (for example, small invertebrate
species); and (5) similar habitat and ecological requirements (for
example, dependence on aquatic habitat in or near springs with a rocky
or gravel substrate). Depending on the amount and variety of
characteristics in which one salamander species can be analogous to
another, we used these similarities as a basis to infer further
parallels in what Georgetown and Salado salamanders require from their
habitat. We have determined that the Georgetown and Salado salamanders
require the physical or biological features described below.
Space for Individual and Population Growth and for Normal Behavior
Georgetown and Salado Salamanders
The Georgetown and Salado salamanders occur in wetted caves and
where water emerges from the ground as a spring-fed stream. Within the
spring ecosystem, salamanders' proximity to the springhead is presumed
important because of the appropriate stable water chemistry and
temperature, substrate, and flow regime. In surface aquatic
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habitats (e.g., spring opening and spring run), Georgetown and Salado
salamanders are generally found within 66 ft (20 m) of a spring source
(TPWD 2011, p. 3; Diaz et al 2015, p. 7). These salamanders appear to
be most abundant within the first 16 ft (5 m) of a spring opening
(Pierce et al. 2010, p. 294; Gutierrez et al. 2018, pp. 386-388; Pierce
et al. 2014, pp. 139-140, 141-142). However, some researchers have
noted results of their mark-recapture efforts are most applicable to
large juvenile and adult Georgetown and Salado salamanders, and may not
accurately depict the movement of larvae (Gutierrez et al., pp. 387-
388).
Georgetown and Salado salamanders have been regularly observed, in
reduced numbers, at distances greater than 66 ft (20 m) from spring
openings (Pierce 2016, p. 13; Pierce 2017, p. 14, 17, 19; Gutierrez et
al. 2018, p. 386)). Some individual salamanders have been found up to
194 ft (59 m) from a spring opening (Pierce et al. 2011a, p. 4; Pierce
2015, p. 13; Pierce 2016, pp. 14, 17, 19; Gutierrez et al. p. 386).
Gravid (i.e., egg-bearing) Georgetown and Salado salamanders have been
noted as moving more often and to greater distances than non-gravid
individuals (Pierce 2015, pp. 7-8; Gutierrez et al. 2018, pp. 385-386).
Some researchers have indicated that areas downstream from spring
openings may be important for salamander reproduction (Pierce 2015, pp.
7-8; Gutierrez et al. 2018, pp. 387-388). Jollyville Plateau salamander
small juveniles were most abundant downstream from spring openings,
with most of these individuals occurring at a distance of approximately
197-262 ft (60-80 m) from spring outlets (Bendik et al. 2016, pp. 9-10,
16).
The Jollyville Plateau salamander has been found up to 262 ft (80
m) both upstream and downstream from a spring outlet (Bendik et al.
2016, p. 9). That salamander species, along with the Georgetown and
Salado salamanders, comprise a closely related subgenus,
Septentriomolge, occurring in the Northern Segment of the Edwards
Aquifer (Hillis et al. 2001, pp. 275, 277; Devitt et al. 2019, pp.
2626-2628). Members of the Eurycea subgenus can travel greater
distances from a discrete spring opening than previously thought,
including upstream areas (Bendik et al. 2016, p. 9). Therefore, we
presume that the Georgetown and Salado salamanders may move a
comparable distance and that aquatic habitat away from spring openings
is potentially important to salamander reproduction.
Georgetown and Salado salamanders likely use the subterranean
aquifer for habitat throughout the year, similar to other Eurycea
species (Bendik and Gluesenkamp 2012, pp. 4-5; Bendik et al. 2013, pp.
10-12, 15; Bendik 2017, p. 5,013; Diaz and Bronson-Warren 2018, p. 11;
Devitt et al. 2019a, p. 2,625). Morphological forms of Georgetown
salamander with cave adaptations have been found at two caves (TPWD
2011, p. 8), indicating that they spend all of their lives underground
at these two locations. We assume that the Salado salamander also uses
subsurface areas given recruitment of individuals to the surface from
the underlying aquifer, with surface recruitment at one occupied spring
opening in Bell County estimated at 0.03 salamanders per day (Diaz and
Bronson-Warren 2019, p. 7). Therefore, based on the information above,
we identify springs, associated streams, and underground spaces within
the Northern Segment of the Edwards Aquifer to be physical or
biological features essential for individual and population growth and
for normal behavior of the Georgetown and Salado salamanders.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Georgetown and Salado Salamanders
No species-specific dietary study has been completed, but the diet
of the Georgetown salamander is presumed to be similar to other Eurycea
species, consisting of small aquatic invertebrates such as amphipods,
copepods, isopods, and insect larvae (reviewed in COA 2001, pp. 5-6).
Crustaceans from the Class Ostracoda were the most commonly observed
prey item for Salado salamanders (Diaz and Bronson-Warren 2018, pp. 8,
14). Other invertebrates consumed by the Salado salamander included
amphipods, aquatic snails, and larvae of mayflies and caddisflies (Diaz
and Bronson-Warren 2018, p. 14).
Georgetown and Salado salamanders are strictly aquatic and spend
their entire lives submersed in water from the Northern Segment of the
Edwards Aquifer (Pierce et al. 2010, p. 296; Diaz and Bronson-Warren
2019, p. 7). These salamanders, and the prey that they feed on, require
water sourced from the Edwards Aquifer at sufficient flows (i.e.,
quantity) to meet all of their physiological requirements (TPWD 2011,
p. 8). This water should be flowing and unchanged in chemistry,
temperature, and volume from natural conditions. Currently, only a
limited subset of springs inhabited by Georgetown and Salado
salamanders have been assessed for water quality. Research at
additional occupied spring sites will aid in refining the range of
suitable water quality parameters these salamanders depend upon. Our
assessment of water quality parameters was restricted to a subset of
relatively intact spring sites with available water quality data--
specifically, Robertson Springs in Bell County and Cobbs, Cowan, King's
Garden, Swinbank, and Twin Springs in Williamson County. The Salado
salamander occurs at five (i.e., Robertson, Cobbs, Cowan, King's
Garden, and Twin Springs) of these springs. The Georgetown salamander
occupies Swinbank Spring. We presume that water quality parameters at
these other sites are suitable for the Georgetown salamander as well
given that species' co-occurrence in the Northern Segment of the
Edwards Aquifer. These spring sites provide some degree of a
representative sample as they lie along a roughly north to south line
across that segment of the Edwards Aquifer, from southern Bell County
to central Williamson County.
Water temperature recorded at the six springs referenced above
averaged 69 degrees Fahrenheit ([deg]F) (21 degrees Celsius ([deg]C))
and ranged from 61 to 84 [deg]F (16 to 29 [deg]C) (Diaz et al. 2015, p.
10; Diaz et al. 2016, p. 14; Cambrian Environmental 2016, pp. 3, 5, 7;
Cambrian Environmental 2017a, pp. 3, 5, 7; Cambrian Environmental
2017b, pp. 5, 8, 12; Diaz and Montagne 2017, p. 17; Cambrian
Environmental 2018a, pp. 4, 9, 13; Cambrian Environmental 2018c, pp.
13-14; Cambrian Environmental 2019a, pp. 37-38; Cambrian Environmental
2019b, pp. 295-297, 329; Cambrian Environmental 2020, pp. 35-36).
Concentrations of contaminants should be below levels that could exert
direct lethal or sublethal effects (such as effects to reproduction,
growth, development, or metabolic processes), or indirect effects (such
as effects to the Georgetown and Salado salamanders' prey base).
Edwards Aquifer Eurycea species are adapted to a lower ideal range
of oxygen saturations compared to other salamanders (Turner 2009, p.
11). However, Eurycea salamanders need dissolved oxygen concentrations
to be above a certain threshold, as the related Barton Springs
salamander demonstrates declining abundance with dissolved oxygen
levels below 5 milligrams per liter (mg/L) (Turner 2004, pp. 5-7, 10;
Turner 2009, pp. 12-15). In addition, dissolved oxygen concentrations
below 4.5 mg/L resulted in a number of physiological effects in the
related San Marcos salamander, including decreased metabolic rates and
decreased juvenile growth rates (Woods et al. 2010, p. 544). Large-
scale mortality
[[Page 46549]]
of a San Marcos salamander was expected if dissolved oxygen dropped
below 3.4 mg/L for extended periods (i.e., 25 days) (Woods et al. 2010,
pp. 544, 549-551).
Lower dissolved oxygen values have been noted at sites inhabited by
the Georgetown and Salado salamanders, with measured values as low as
1.5 mg/L (Cambrian Environmental 2018, p. 22). Reported impacts to
Georgetown and/or Salado salamanders, in the presence of lower
dissolved oxygen, are limited. One Georgetown salamander site (i.e.,
Swinbank Spring) experienced a decrease in dissolved oxygen to 2.2 mg/L
in June 2016, with levels rebounding in July 2016 to 6.4 mg/l (Cambrian
Environmental 2017b, p. 8). No decline in numbers of salamanders was
noted after that event (Cambrian Environmental 2017b, p. 22). Dissolved
oxygen at that spring averaged 7.2 mg/L for the remainder of 2016
(Cambrian Environmental 2017b, p. 8). Conversely, Cobbs Spring,
occupied by the Salado salamander, experienced a decrease in dissolved
oxygen to 3.2 mg/L in February 2016, and remained below 4.0 mg/L into
March 2016 (Cambrian Environmental 201a8, p. 13). That low dissolved
oxygen event was followed by sharper declines in August 2016 to 1.5 mg/
L with dissolved oxygen remaining below 4.0 mg/L through September 2016
(Cambrian Environmental 2018a, p. 13). Numbers of Salado salamanders
observed at this spring declined after the latter event and remained
low throughout 2017 (Cambrian Environmental 2018a, pp. 13, 42-43).
Subsequently, numbers of Salado salamanders observed at this spring
have increased (Cambrian Environmental 2020, p. 18).
Based on available water quality data, the six relatively intact
springs in Bell and Williamson counties are generally characterized by
average dissolved oxygen of 6.6 mg/L with recorded levels ranging from
1.5 to 13.3 mg/L (Diaz et al. 2015, p. 10; Diaz et al. 2016, p. 14;
Cambrian Environmental 2016, pp. 3, 5, 7; Cambrian Environmental 2017a,
pp. 3, 5, 7; Cambrian Environmental 2017b, pp. 5, 8, 12; Diaz and
Montagne 2017, p. 17; Cambrian Environmental 2018a, pp. 4, 9, 13;
Cambrian Environmental 2018c, pp. 13-14; Cambrian Environmental 2019a,
pp. 37-38; Cambrian Environmental 2019b, pp. 295-297, 329; Cambrian
Environmental 2020, pp. 35-36). Dissolved oxygen below 4.5 mg/L appears
to have some impact on Salado salamander abundance. This is consistent
with observed effects on the Barton Springs and San Marcos salamanders
(Turner 2004, pp. 5-7, 10; Turner 2009, pp. 12-15; Woods et al. 2010,
pp. 544, 549-551). Woods et al. (2010, p. 540) states that an ambient
concentration of dissolved oxygen of 5.0 mg/L appears adequate to
sustain Eurycea salamanders. Therefore, we presume that dissolved
oxygen in the range of 5.0 to 13.0 mg/L is important to the Georgetown
and Salado salamanders for respiratory function. Research is needed to
better define the physiological tolerances of the Georgetown and Salado
salamanders to low dissolved oxygen.
The conductivity of water is also important to salamander
physiology. Increased conductivity is associated with increased water
contamination and decreased Eurycea abundance (Willson and Dorcas 2003,
pp. 766-768; Bowles et al. 2006, pp. 117-118). The lower limit of
observed conductivity in developed Jollyville Plateau salamander sites
where salamander densities were lower than undeveloped sites was 800
micro Siemens per centimeter ([micro]S/cm) (Bowles et al. 2006, p.
117). Salamanders were significantly more abundant at undeveloped sites
where water conductivity averaged 600 [micro]S/cm (Bowles et al. 2006,
p. 117). Because of their similar physiology to the Jollyville Plateau
salamander, we presume that the Georgetown and Salado salamanders will
have a similar response to elevated water conductance (i.e., specific
conductance). Water conductance at six relatively intact salamander
sites averaged 671 [micro]S/cm and ranged from 317 to 814 [micro]S/cm
(Diaz et al. 2015, p. 10; Diaz et al. 2016, p. 14; Cambrian
Environmental 2016, pp. 3, 5, 7; Cambrian Environmental 2017a, pp. 3,
5, 7; Cambrian Environmental 2017b, pp. 5, 8, 12; Diaz and Montagne
2017, p. 17; Cambrian Environmental 2018a, pp. 4, 9, 13; Cambrian
Environmental 2018c, pp. 13-14; Cambrian Environmental 2019a, pp. 37-
38; Cambrian Environmental 2019b, pp. 295-297, 329; Cambrian
Environmental 2020, pp. 35-36). Although one laboratory study on the
related San Marcos salamander demonstrated that conductivities up to
2,738 [micro]S/cm had no measurable effect on adult activity (Woods and
Poteet 2006, p. 5), it remains unclear how elevated water conductance
might affect juveniles or the long-term health of salamanders in the
wild. Bowles et al. (2006, pp. 117-118) documented lower densities of
the Jollyville Plateau salamander at sites with higher amounts of human
development and high specific conductance (i.e., average of 917
[micro]S/cm). Greater densities of that salamander were observed in
undeveloped (i.e., less than 10 percent impervious cover) sites with
lower specific conductance (593 [micro]S/cm) (Bowles et al. 2006, pp.
117-118). Higher specific conductance at developed sites was attributed
to the presence of contaminants from roadway runoff, wastewater
leakage, and fertilizer use (Bowles et al. 2016, pp. 118-119). A more
recent assessment of contaminants uptake in the Georgetown, Jollyville
Plateau, and Salado salamanders found higher amounts of contaminants
(e.g., organochlorines and polycyclic aromatic hydrocarbons) at more
heavily developed sites (i.e., greater than 10 percent impervious
cover) and in the tissues of the salamanders themselves (Diaz et al.
2020, pp. 291-294). In that study, specific conductance of developed
sites averaged 798 [micro]S/cm, whereas sites with little to no
impervious cover averaged 684 [micro]S/cm (Diaz et al. 2020, Table S5).
In the absence of better information on the sensitivity of salamanders
to changes in conductivity (or other contaminants) in the wild, it is
reasonable to presume that salamander survival, growth, and
reproduction will be most successful when water quality is unaltered
from natural aquifer conditions.
Therefore, based on the information above, we identify aquatic
invertebrates and water from the Northern Segment of the Edwards
Aquifer, including adequate dissolved oxygen concentration of 5.0 to
13.0 mg/L, water conductance of 317 to 814 [micro]S/cm, and water
temperature of 61 to 84 [deg]F (16 to 29 [deg]C), to be physical or
biological features essential for the nutritional and physiological
requirements of the Georgetown and Salado salamanders.
Cover or Shelter
Similar to other Eurycea salamanders in central Texas, Georgetown
and Salado salamanders move an unknown depth into the interstitial
spaces (empty voids between rocks) within the substrate, using these
spaces for foraging habitat and cover from predators (Cole 1995, p. 24;
Pierce and Wall 2011, pp. 16-17; Jones et al. 2020, pp. 291-292). These
spaces should have minimal sediment, as sediment fills interstitial
spaces, eliminating resting places and reducing habitat of the prey
base (small aquatic invertebrates) (O'Donnell et al. 2006, p. 34).
Georgetown and Salado salamanders have been observed under rocks,
leaf litter, woody debris, and other cover objects (Pierce et al. 2010,
p. 295; Diaz and Montagne 2017, p. 10; Diaz and Bronson-Warren, 2019,
p. 7). Georgetown salamanders appear to
[[Page 46550]]
prefer large rocks over other cover objects (Pierce et al. 2010, p.
295), which is consistent with other studies on Eurycea habitat (Bowles
et al. 2006, pp. 114, 116). Larger rocks provide more suitable
interstitial spaces for foraging and cover. Other studies have noted
greater detection of Salado salamanders in gravels, although cobble is
occupied as well (Diaz and Montagne 2017, p. 10; Diaz and Bronson-
Warren, 2019, p. 7).
If springs stop flowing and the surface habitat dries up,
Jollyville Plateau salamanders recede with the water table and persist
in groundwater refugia until surface flow returns (Bendik 2011a, p.
31). Access to refugia allows populations some resiliency against
drought events. Due to the similar life history and habitats of the
Georgetown and Salado salamanders, we presume that access to subsurface
refugia for shelter during drought is also important for these
salamanders.
Therefore, based on the information above, we identify rocky
substrate, consisting of boulder, cobble, and gravel, with interstitial
spaces that have minimal sediment, and access to the subsurface
groundwater table to be physical or biological features essential for
the cover and shelter for these species.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
Little is known about the reproductive habits of these species in
the wild. However, the Georgetown and Salado salamanders are fully
aquatic, spending all of their life cycles in aquifer and spring
waters. Eggs of central Texas Eurycea species are rarely seen on the
surface, so it is widely assumed that eggs are laid underground
(Gluesenkamp 2011a, TPWD, pers. comm.; Bendik 2011b, COA, pers. comm.).
Therefore, based on the information above, we identify access to
subsurface or subterranean, water-filled voids of varying sizes (e.g.,
caves, conduits, fractures, and interstitial spaces) to be a physical
or biological feature essential for breeding and reproduction for this
species.
Summary of Essential Physical or Biological Features for the Georgetown
and Salado Salamanders
We derive the specific physical or biological features essential
for the Georgetown and Salado salamanders from studies of these
species' habitat, ecology, and life history, as described above. We
have determined that the following physical or biological features are
essential to the conservation of the Georgetown and Salado salamanders:
Georgetown Salamander
(1) For surface habitat:
(A) Water from the Northern Segment of the Edwards Aquifer.
Groundwater issuing to the surface from the underlying aquifer is
similar to natural aquifer conditions as it discharges from natural
spring outlets. Concentrations of water quality constituents and
contaminants should be below levels that could exert direct lethal or
sublethal effects (such as effects to reproduction, growth,
development, or metabolic processes), or indirect effects (such as
effects to the Georgetown salamander's prey base). Hydrologic regimes
similar to the historical pattern of the specific sites are present,
with at least some surface flow during the year. The water chemistry of
aquatic surface habitats is similar to natural aquifer conditions, with
temperatures from 61 to 84 [deg]F (16 to 29 [deg]C), dissolved oxygen
concentrations from 5 to 13 mg/L, and specific water conductance from
317 to 814 [micro]S/cm.
(B) Rocky substrate with interstitial spaces. Rocks in the
substrate of the salamander's surface aquatic habitat are large enough
to provide salamanders with cover, shelter, and foraging habitat. The
substrate and interstitial spaces have minimal sedimentation.
(C) Aquatic invertebrates for food. The spring environment supports
a diverse aquatic invertebrate community that includes crustaceans,
insects, and aquatic snails.
(D) Subterranean aquifer. Access to the subsurface water table
exists to provide shelter, protection, and space for reproduction. This
access can occur in the form of large conduits that carry water to the
spring outlet or porous voids between rocks in the streambed that
extend down into the water table.
(2) For subsurface habitat:
(A) Water from the Northern Segment of the Edwards Aquifer.
Groundwater quality is similar to natural aquifer conditions.
Concentrations of water quality constituents and contaminants should be
below levels that could exert direct lethal or sublethal effects (such
as effects to reproduction, growth, development, or metabolic
processes), or indirect effects (such as effects to the Georgetown
salamander's prey base). Hydrologic regimes similar to the historical
pattern of the specific sites are present, with continuous flow. The
water chemistry is similar to natural aquifer conditions, with
temperatures from 61 to 84 [deg]F (16 to 29 [deg]C), dissolved oxygen
concentrations from 5 to 13 mg/L, and specific water conductance from
317 to 814 [micro]S/cm.
(B) Subsurface spaces. Voids between rocks underground are large
enough to provide salamanders with cover, shelter, and foraging
habitat. These spaces have minimal sedimentation.
(C) Aquatic invertebrates for food. The habitat supports an aquatic
invertebrate community that includes crustaceans, insects, and aquatic
snails.
Salado Salamander
(1) For surface habitat:
(A) Water from the Northern Segment of the Edwards Aquifer.
Groundwater quality issuing to the surface from the underlying aquifer
is similar to natural aquifer conditions as it discharges from natural
spring outlets. Concentrations of water quality constituents and
contaminants are below levels that could exert direct lethal or
sublethal effects (such as effects to reproduction, growth,
development, or metabolic processes), or indirect effects (such as
effects to the Salado salamander's prey base). Hydrologic regimes
similar to the historical pattern of the specific sites are present,
with at least some surface flow during the year. The water chemistry of
aquatic surface habitats is similar to natural aquifer conditions, with
temperatures from 61 to 84 [deg]F (16 to 29 [deg]C), dissolved oxygen
concentrations from 5 to 13 mg/L, and specific water conductance from
317 to 814 [micro]S/cm.
(B) Rocky substrate with interstitial spaces. Rocks in the
substrate of the salamander's surface aquatic habitat are large enough
to provide salamanders with cover, shelter, and foraging habitat. The
substrate and interstitial spaces have minimal sedimentation.
(C) Aquatic invertebrates for food. The spring environment is
capable of supporting a diverse aquatic invertebrate community that
includes crustaceans, insects, and aquatic snails.
(D) Subterranean aquifer. Access to the subsurface water table
exists to provide shelter, protection, and space for reproduction. This
access can occur in the form of large conduits that carry water to the
spring outlet or porous voids between rocks in the streambed that
extend down into the water table.
(2) For subsurface habitat:
(A) Water from the Northern Segment of the Edwards Aquifer.
Groundwater quality is similar to natural aquifer conditions.
Concentrations of water quality constituents and contaminants are below
levels that could exert direct lethal or sublethal effects (such as
effects to reproduction, growth, development, or metabolic processes),
or indirect effects (such as effects to the Salado salamander's prey
base). Hydrologic regimes similar to the historical pattern of the
specific sites are present, with continuous flow. The water chemistry
is similar to natural
[[Page 46551]]
aquifer conditions, with temperatures from 61 to 84 [deg]F (16 to 29
[deg]C), dissolved oxygen concentrations from 5 to 13 mg/L, and
specific water conductance from 317 to 814 [micro]S/cm.
(B) Subsurface spaces. Voids between rocks underground are large
enough to provide salamanders with cover, shelter, and foraging
habitat. These spaces have minimal sedimentation.
(C) Aquatic invertebrates for food. The habitat is capable of
supporting an aquatic invertebrate community that includes crustaceans,
insects, and aquatic snails.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of these species
may require special management considerations or protection to reduce
the following threats: Water quality degradation from contaminants,
alteration to natural flow regimes, and physical habitat modification.
The areas designated for critical habitat include both surface and
subsurface critical habitat components. The surface critical habitat
includes the spring outlets and outflow up to the high water line and
150 ft (80 m) of downstream habitat, but does not include human-made
structures (such as buildings, aqueducts, runways, roads, and other
paved areas); nor does it include upland habitat adjacent to streams.
However, the subterranean aquifer may extend below such structures
beneath the surface habitat. The subsurface critical habitat includes
underground features in a circle with a radius of 984 ft (300 m) around
the springs. Most of designated critical habitat is a subsurface
designation and only includes the physical area beneath any buildings
on the surface.
We detailed threats to surface and subsurface habitats under A. The
Present or Threatened Destruction, Modification, or Curtailment of Its
Habitat or Range in the final listing rule for the Georgetown and
Salado salamanders (79 FR 10236, February 24, 2014, pp. 79 FR 10258-
10279). The Georgetown and Salado salamanders are sensitive to
modification of surface (i.e., spring openings and outflow) and
subsurface habitats. Due to the connectivity between the surface and
subsurface habitats, an impact to one will affect the other. Examples
of surface habitat modifications may include (but are not limited to)
damage to spring openings, sedimentation due to construction
activities, and installation of impoundments. Examples of impacts to
subsurface habitat may include (but are not limited to) pipeline
construction, replacement, and maintenance; excavation for construction
or quarrying; and groundwater depletion that can reduce spring flow.
The depth of the subsurface habitat will vary from site to site.
For these salamanders, special management considerations or
protections may be needed to address identified threats. Management
activities that could ameliorate threats to surface habitat include
(but are not limited to): (1) Protecting the quality of cave and spring
water by implementing comprehensive programs to control and reduce
point sources and non-point sources of pollution throughout the
Northern Segment of the Edwards Aquifer; (2) minimizing the likelihood
of pollution events or surface runoff from existing and future
development that would affect groundwater quality; (3) protecting
groundwater and spring flow quantity (for example, by implementing
water conservation and drought contingency plans throughout the
Northern Segment of the Edwards Aquifer); (4) protecting water quality
and quantity from present and future quarrying; (5) excluding cattle
and feral hogs from spring openings and outflow through fencing to
protect spring habitats from damage; and (6) fencing and signage to
protect spring habitats from human vandalism. Some of the management
activities listed above, such as those that protect spring flow and
groundwater quality, protect both surface and subsurface habitats, as
these are interconnected.
Additional management activities that could ameliorate threats that
are specific to subsurface habitat include (but are not limited to):
(1) The development and implementation of void mitigation plans for
construction projects to prevent impacts to salamanders in the event of
severed aquifer conduits or interrupted groundwater flow paths; (2)
site-specific plans developed by geotechnical engineers to prevent
changes to subsurface water flow from construction activities; (3) the
presence of environmental monitors during construction, excavation, and
drilling activities to monitor spring flow; and (4) post-construction
monitoring of spring flow. Because subsurface habitat differs with
regard to groundwater flow paths, depth, and amount of water-bearing
rocks with voids that can support salamanders, management, and
mitigation plans to ameliorate threats will need to be developed on a
site-specific basis.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. During our preparation for
designating critical habitat for the two salamander species, we
reviewed: (1) Data for historical and current occurrence; (2)
information pertaining to habitat features essential for the
conservation of these species; and (3) scientific information on the
biology and ecology of the two species. We have also reviewed a number
of studies and surveys of the two salamander species that confirm
historical and current occurrence of the two species including, but not
limited to, Sweet (1978; 1982), Russell (1993), Warton (1997), City of
Austin (COA)(2001), Chippindale et al. (2000), Hillis et al. (2001),
and Devitt et al. (2019). Finally, salamander site locations and
observations were verified with the aid of salamander biologists,
museum collection records, and site visits.
We are not designating any additional areas outside the
geographical area occupied by these species because we have determined
that occupied areas are sufficient to conserve the Georgetown and
Salado salamanders, although we acknowledge that other areas, such as
the recharge zone of the aquifers supporting salamander locations, are
very important to the conservation of the species. This critical
habitat designation delineates the habitat that is physically occupied
and used by the species rather than delineating all land or aquatic
areas that influence the species. We also recognize that there may be
additional occupied areas outside of the areas designated as critical
habitat that we are not aware of at the time of this designation that
may be necessary for the conservation of the species. For the purpose
of designating critical habitat for the Georgetown and Salado
salamanders, we define an area as occupied based upon the reliable
observation of either salamander species
[[Page 46552]]
by a knowledgeable scientist and cited within published articles,
unpublished reports, and Service files including Hunter and Russell
(1993, p. 7-8), Pierce and Wall (2011, pp. 2-3), Chippindale et al.
(2000, pp. 39-43), Diaz and Montagne (2017, p. 6), Cambrian
Environmental (201bc, pp. 5-6), Devitt et al. (2019a, pp. 2,626,
2,628), and Devitt et al. (2019b, pp. 16-18). It is very difficult to
determine whether a salamander population has been extirpated from a
spring site due to these species' ability to occupy the inaccessible
subsurface habitat. The Georgetown and Salado salamanders are not
capable of long-distance dispersal between isolated springs due to
their reliance on discrete, groundwater-dependent ecosystems. Springs
in central Texas are frequently historical features of the landscape
that predate European settlement of the North American continent (Brune
1981, pp. 65-69, 473-476). We, therefore, consider sites with
observations of salamanders at the time of listing to be currently
occupied, unless that spring or cave site had been destroyed.
Based on our review, the critical habitat areas (described below)
are within the geographical range occupied by at least one of the two
salamander species and meet the definition of critical habitat. The
true extent to which the subterranean populations of these species
exist below ground away from outlets of the spring system is unknown
because the hydrology of central Texas is very complex and information
on the hydrology of specific spring sites is largely unknown. We will
continue to seek information to increase our understanding of spring
hydrology and salamander underground distribution to inform
conservation efforts for these species. At the time of this final
critical habitat rule, the best scientific evidence available indicates
that a population of groundwater-dependent Eurycea salamanders can
extend at least 984 ft (300 m) from the spring opening through
underground conduits or voids between rocks. For example, the Austin
blind salamander is thought to occur underground throughout the entire
Barton Springs complex (Dries 2011, pers. comm.). The spring habitats
used by salamanders of the Barton Springs complex are not connected on
the surface, so the Austin blind salamander population extends at least
984 ft (300 m) underground, as this is the approximate distance between
the farthest two outlets within the Barton Springs complex known to be
occupied by the species.
We designate critical habitat in areas that we have determined are
occupied by one of the two salamanders and contain physical or
biological features essential to the conservation of the species. We
delineated both surface and subsurface critical habitat components. As
previously stated, a Jollyville Plateau salamander was observed to have
traveled up to 1,640 ft (500 m) after multiple years (i.e., 2010-2014)
in Bull Creek (Bendik et al. 2016, p. 9). However, the surface critical
habitat component was delineated by starting with the spring point
locations that are occupied by the salamanders and extending a line
upstream and downstream 262 ft (80 m). This was the farthest distance a
Eurycea salamander has been observed from a spring outlet over a 4-
month period (i.e., January to April) in a single year (Bendik et al.
2016, pp. 9-10) and is likely a more reasonable distance for
salamanders in common hydrological settings. We applied this maximum
distance to account for the potential movement and surface habitat use
of Georgetown and Salado salamanders upstream and downstream of spring
openings. It is reasonable to consider the downstream and upstream
habitat occupied based on the dispersal capabilities observed in
individuals of very similar species. When determining surface critical
habitat boundaries, we were not able to delineate specific stream
segments on the map due to the small size of the streams. Therefore, we
drew a circle with a 262-ft (80-m) radius representing the extent the
surface population of the site is estimated to exist upstream and
downstream. This circle does not include upland habitat adjacent to
streams. The surface critical habitat includes the spring outlets and
outflow up to the ordinary high water mark (the average amount of water
present in nonflood conditions, as defined in 33 CFR 328.3(e)) and 262
ft (80 m) of upstream and downstream habitat (to the extent that this
habitat is ever present), including the dry stream channel during
periods of no surface flow. We acknowledge that some spring sites
occupied by one of the two salamanders are the start of the
watercourse, and upstream habitat does not exist for these sites. The
surface habitat we are designating as critical habitat does not include
human-made structures (such as buildings, aqueducts, runways, roads,
and other paved areas) within this circle, nor does it include upland
habitat adjacent to streams.
We delineated the subsurface critical habitat unit boundaries by
starting with the cave or spring point locations that are occupied by
the salamanders. Depth to subsurface habitat will vary from site to
site based on local geology. From these cave or spring points, we
delineated an area with a 984-ft (300-m) radius to create the polygons
that capture the extent to which we estimate the salamander populations
exist through underground habitat. This radial distance comes from
observations of the Austin blind salamander, which is thought to occur
underground throughout the entire Barton Springs complex (Dries 2011,
COA, pers. comm.). The Austin blind salamander is a reasonable
surrogate for Salado and Georgetown salamanders, as it also inhabits
subsurface, water-filled voids in the underlying Edwards Aquifer
(Hillis et al. 2001, p. 23). The spring outlets used by salamanders of
the Barton Springs complex are not connected on the surface, so the
Austin blind salamander population extends a horizontal distance of at
least 984 ft (300 m) underground, as this is the approximate distance
between the farthest two outlets within the Barton Springs complex
known to be occupied by the species. This distance was applied to the
Georgetown and Salado salamanders given their reliance on subsurface
aquifer habitats (Bendik and Gluesenkamp 2012, pp. 4-5; Bendik et al.
2013, pp. 10-12, 15; Bendik 2017, p. 5,013; Diaz and Bronson-Warren
2018, p. 11; Devitt et al. 2019, p. 2,625). Polygons that were within
98 ft (30 m) of each other were merged together as these areas have the
potential to be connected underground (Devitt et al. 2019a, pp. 2,629-
2,630). Each merged polygon was then revised by removing extraneous
divots or protrusions that resulted from the merge process.
Developed areas of surface habitat, such as lands covered by
buildings, pavement, and other structures, lack physical or biological
features for the Georgetown and Salado salamanders. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the final rule and are not designated as critical habitat.
Therefore, a Federal action involving these lands would not trigger
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We designate as critical habitat lands that we have determined are
occupied at the time of listing (i.e., currently occupied) and that
contain one or more
[[Page 46553]]
of the physical or biological features that are essential to support
life-history processes of the species.
The critical habitat designation is defined by the maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
<a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R2-ES-2020-0048 and on our
internet site at <a href="https://www.fws.gov/southwest/es/AustinTexas/ESA_Sp_Salamanders.html">https://www.fws.gov/southwest/es/AustinTexas/ESA_Sp_Salamanders.html</a>.
Final Critical Habitat Designation
We are designating as critical habitat nine units for the
Georgetown salamander and seven units for the Salado salamander. In
Tables 1 and 2 below, we present the critical habitat units for the
Georgetown and Salado salamanders. All units are considered occupied by
the relevant species at the time of listing. We also provide unit
descriptions for all Georgetown and Salado salamander critical habitat
units. The critical habitat areas we describe below constitute our
current best assessment of subsurface and surface areas that meet the
definition of critical habitat for the Georgetown and Salado
salamanders. During periods of drought or dewatering on the surface in
and around spring sites, access to the subsurface water table must be
provided for shelter and protection. Surface critical habitat includes
the spring outlets and outflow up to the high water line and 262 ft (80
m) of downstream habitat, but does not include terrestrial habitats or
human-made structures (such as buildings, aqueducts, runways, roads,
and other paved areas) and the land on which they are located existing
within the legal boundaries on the effective date of this rule (see
DATES, above) or land adjacent to streams; however, the subterranean
aquifer may extend below such structures. The subsurface critical
habitat includes underground features in a circle with a radius of 984
ft (300 m) around the springs.
Table 1--Critical Habitat Units for the Georgetown Salamander
------------------------------------------------------------------------
Size of unit
Critical habitat unit Land ownership by in acres
type (hectares)
------------------------------------------------------------------------
1. Water Tank Cave Unit........... Private............. 68 (28)
2. Hogg Hollow Spring Unit........ Private, Federal.... 122 (49)
3. Cedar Hollow Spring Unit....... Private............. 68 (28)
4. Lake Georgetown Unit........... Federal, Private.... 134 (54)
5. Buford Hollow Spring Unit...... Federal, Private.... 68 (28)
6. Swinbank Spring Unit........... City, Private....... 68 (28)
7. Avant Spring Unit.............. Private............. 68 (28)
8. Shadow Canyon Spring Unit...... City, Private....... 68 (28)
9. Garey Ranch Spring Unit........ Private............. 68 (28)
---------------
Total......................... .................... 732 (299)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all
land within critical habitat unit boundaries.
Table 2--Critical Habitat Units for the Salado Salamander
------------------------------------------------------------------------
Size of unit
Critical habitat unit Land ownership by in acres
type (hectares)
------------------------------------------------------------------------
1. Hog Hollow Spring Unit......... Excluded under section 4(b)(2) of
the Act.
2. Solana Spring Unit............. Excluded under section 4(b)(2) of
the Act.
3. Cistern Spring Unit............ Excluded under section 4(b)(2) of
the Act.
-------------------------------------
4. IH-35 Unit..................... Private, State, City 175 (71)
5. King's Garden Main Spring Unit. Private............. 68 (28)
6. Cobbs Spring Unit.............. Private............. 68 (28)
7. Cowan Creek Spring Unit........ Private............. 68 (28)
8. Walnut Spring Unit............. Private, County..... 68 (28)
9. Twin Springs Unit.............. Private, County..... 68 (28)
10. Bat Well Cave Unit............ Private............. 68 (28)
---------------
Total......................... .................... 583 (239)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all
land within critical habitat unit boundaries.
Georgetown Salamander
Critical habitat units for the Georgetown salamander may require
special management because of the potential for groundwater pollution
from current and future development in the watershed, present
operations and future expansion of quarrying activities, depletion of
groundwater, and other threats (see Special Management Considerations
or Protection, above). All units are occupied by the Georgetown
salamander. The designation includes the spring outlets and outflow up
to the high-water mark and 262 ft (80 m) of upstream and downstream
habitat. Units are further delineated by drawing a circle with a radius
of 984 ft (300 m) around the spring, representing the extent of the
subterranean critical habitat. For cave populations of the Georgetown
salamander, the unit is delineated by drawing a circle with a radius of
984 ft (300 m) around the underground location of the salamanders,
representing the extent of the subsurface critical habitat.
[[Page 46554]]
Unit 1: Water Tank Cave Unit
Unit 1 consists of approximately 68 ac (28 ha) of private land in
west-central Williamson County, Texas. A golf course crosses the unit
from northwest to southeast, and there are several roads in the eastern
part of the unit. A secondary road crosses the extreme southern portion
of the unit, and there are residences in the northwestern,
southwestern, and west-central portions of the unit. This unit contains
Water Tank Cave, which is occupied by the Georgetown salamander. Only
subsurface critical habitat was designated for this cave population.
The unit contains the physical or biological features essential for the
conservation of the species.
Unit 2: Hogg Hollow Spring Unit
Unit 2 consists of approximately 122 ac (49 ha) of U.S. Army Corps
of Engineers land and private land in Williamson County, Texas. The
unit is located south of Lake Georgetown and is mostly undeveloped. The
northwestern part of the unit includes Sawyer Park, part of the Lake
Georgetown recreation area. This unit contains two springs: Hogg Hollow
Spring and Hogg Hollow 2 Spring, which are occupied by the Georgetown
salamander. Hogg Hollow Spring is located on Hogg Hollow, and Hogg
Hollow 2 Spring is located on an unnamed stream, both tributaries to
Lake Georgetown. The unit contains the physical or biological features
essential for the conservation of the species.
Unit 3: Cedar Hollow Spring Unit
Unit 3 consists of approximately 68 ac (28 ha) of private land in
west-central Williamson County, Texas. A secondary road crosses the
extreme southern portion of the unit, and there are residences in the
northwestern, southwestern, and west-central portions of the unit. This
unit contains Cedar Hollow Spring, which is occupied by the Georgetown
salamander. The spring is located on Cedar Hollow, a tributary to Lake
Georgetown. The unit contains the physical or biological features
essential for the conservation of the species.
Unit 4: Lake Georgetown Unit
Unit 4 consists of approximately 134 ac (54 ha) of Federal and
private land in west-central Williamson County, Texas. Part of the unit
is the U.S. Army Corps of Engineers' Lake Georgetown property. There
are currently no plans to develop the property. There is some control
of public access. Unpaved roads are found in the western portion of the
unit, and a trail begins in the central part of the unit and leaves the
northeast corner. A secondary road crosses the extreme southern portion
of the unit, and there are residences in the northwestern,
southwestern, and west-central portions of the unit. A large quarry is
located a short distance southeast of the unit. This unit includes two
springs, Knight (Crockett Gardens) Spring and Cedar Breaks Hiking Trail
Spring, which are occupied by the Georgetown salamander. The springs
are located on an unnamed tributary to Lake Georgetown. A portion of
the northern part of the unit extends under Lake Georgetown. The unit
contains the physical or biological features essential for the
conservation of the species.
Unit 5: Buford Hollow Spring Unit
Unit 5 consists of approximately 68 ac (28 ha) of Federal and
private land in west-central Williamson County, Texas. The unit is
located just below the spillway for Lake Georgetown. The U.S. Army
Corps of Engineers owns most of this unit as part of Lake Georgetown.
The D.B. Wood Road, a major thoroughfare, crosses the eastern part of
the unit. The rest of the unit is undeveloped. This unit contains
Buford Hollow Springs, which is occupied by the Georgetown salamander.
The spring is located on Buford Hollow, a tributary to the North Fork
San Gabriel River. The unit contains the physical or biological
features essential for the conservation of the species.
Unit 6: Swinbank Spring Unit
Unit 6 consists of approximately 68 ac (28 ha) of City and private
land in west-central Williamson County, Texas. The unit is located near
River Road south of Melanie Lane. The northern part of the unit is
primarily in residential development, while the southern part of this
unit is primarily undeveloped. This unit contains Swinbank Spring,
which is occupied by the Georgetown salamander. The spring is located
just off the main channel of North Fork San Gabriel River. The unit
contains the physical or biological features essential for the
conservation of the species. The population of Georgetown salamanders
in the spring is being monitored monthly as part of the Williamson
County Regional HCP's efforts to conserve the species.
Unit 7: Avant Spring Unit
Unit 7 consists of approximately 68 ac (28 ha) of private land in
west-central Williamson County, Texas. The northern part of a large
quarry is along the southwestern edge of the unit. The rest of the unit
is undeveloped. This unit contains Avant's (Capitol Aggregates) Spring,
which is occupied by the Georgetown salamander. The spring is close to
the streambed of the Middle Fork of the San Gabriel River. The unit
contains the physical or biological features essential for the
conservation of the species.
Unit 8: Shadow Canyon Spring Unit
Unit 8 consists of approximately 68 ac (28 ha) of City and private
land in west-central Williamson County, Texas. The unit is located just
south of State Highway 29. This unit contains Shadow Canyon Spring,
which is occupied by the Georgetown salamander. The spring is located
on an unnamed tributary of South Fork San Gabriel River. The unit
contains the essential physical or biological features for the
conservation of the species. The unit is authorized for development
under the Shadow Canyon HCP. Impacts to the endangered golden-cheeked
warbler (Dendroica chrysoparia) and Bone Cave harvestman (Texella
reyesi) are permitted under the Shadow Canyon HCP; however, impacts to
Georgetown salamander are not covered under the HCP.
Unit 9: Garey Ranch Spring Unit
Unit 9 consists of approximately 68 ac (28 ha) of private land in
Williamson County, Texas. The unit is located north of RM 2243. The
unit is mostly undeveloped. A small amount of residential development
enters the southern and eastern parts of the unit. This unit contains
Garey Ranch Spring, which is occupied by the Georgetown salamander. It
is located on an unnamed tributary to the South Fork San Gabriel River.
The unit contains the physical or biological features essential for the
conservation of the species.
Salado Salamander
Critical habitat units for the Salado salamander may require
special management because of the potential for groundwater pollution
from current and future development in the watershed, present
operations and future expansion of quarrying activities, depletion of
groundwater, and other threats (see Special Management Considerations
or Protection, above). All units are considered to be occupied by the
Salado salamander. The designation includes the spring outlets and
outflow up to the high-water mark and 262 ft (80 m) of upstream and
downstream habitat. Units are further delineated by drawing a circle
with a radius of 984 ft (300 m) around the spring, representing the
extent of the subterranean critical habitat. For cave populations of
the Salado salamander, the unit is delineated by drawing a circle with
a radius of 984 ft (300 m) around the
[[Page 46555]]
underground location of the salamanders, representing the extent of the
subsurface critical habitat.
Unit 1: Hog Hollow Spring Unit
Unit 1 consists of approximately 68 ac (28 ha) of private land
located in southwestern Bell County, Texas. The unit is primarily
undeveloped ranch land. This unit contains Hog Hollow Spring, which is
occupied by the Salado salamander. The unit is located on a tributary
to Rumsey Creek in the Salado Creek drainage and contains the physical
or biological features essential for the conservation of the species.
In 2016, the owners of the spring entered into an agreement with The
Nature Conservancy for a perpetual conservation easement that provides
long-term protection for this site. We have excluded the entire unit
from this final critical habitat designation (see Exclusions, below).
Unit 2: Solana Spring Unit
Unit 2 consists of approximately 68 ac (28 ha) of private land
located in southwestern Bell County, Texas. The unit is primarily
undeveloped ranch land. This unit contains Solana Spring, which is
occupied by the Salado salamander. The unit is located on a tributary
to Rumsey Creek in the Salado Creek drainage and contains the physical
or biological features essential for the conservation of the species.
In 2016, the owners of the spring entered into an agreement with The
Nature Conservancy for a perpetual conservation easement that provides
long-term protection for this site. We have excluded the entire unit
from the final critical habitat designation (see Exclusions, below).
Unit 3: Cistern Spring Unit
Unit 3 consists of approximately 68 ac (28 ha) of private land
located in southwestern Bell County, Texas, on the same private ranch
as Units 1 and 2 for the Salado salamander. The unit is primarily
undeveloped ranch land. This unit contains Cistern Spring, which is
occupied by the Salado salamander. The unit is located on a tributary
to Rumsey Creek in the Salado Creek drainage and contains the physical
or biological features essential for the conservation of the species.
In 2016, the owners of the spring entered into an agreement with The
Nature Conservancy for a perpetual conservation easement that provides
long-term protection for this site. We have excluded the entire unit
from the final critical habitat designation (see Exclusions, below).
Unit 4: IH-35 Unit
Unit 4 consists of approximately 175 ac (71 ha) of private, State,
and City of Salado land located in southwestern Bell County, Texas, in
the southern part of the Village of Salado. The unit extends along
Salado Creek on both sides of Interstate Highway 35 (IH 35). The unit
contains the physical or biological features essential for the
conservation of the species. The IH 35 right-of-way crosses Salado
Creek and is owned by the Texas Department of Transportation. The unit
is a mixture of residential and commercial properties on its eastern
portion, with some undeveloped ranch land in the western part west of
IH-35. This unit contains Robertson Springs complex, located on private
property. West of IH-35 consists of two springs, Creek Spring and Sam
Bass Spring, and five spring openings, Bathtub, Beaver Upper, Beaver
Middle, Headwaters, and Maria, occupied by the Salado salamander. East
of IH-35, the Downtown Spring complex of Unit 4 contains five springs,
Anderson Spring, Big Boiling Spring, Lazy Days Fish Farm, Lil' Bubbly
Spring, and Side Spring, which are all located on private property and
occupied by the Salado salamander.
The spring habitat within this unit has been modified. In the fall
of 2011, the outflow channels and edges of Big Boiling Spring and Lil'
Bubbly Spring were reconstructed by a local organization, with large
limestone blocks and mortar, to increase human access and visitation.
In addition, in response to other activity in the area, the U.S. Army
Corps of Engineers issued a cease-and-desist order to the Salado
Chamber of Commerce in October 2011, for unauthorized discharge of
dredged or fill material that occurred in this area (Brooks 2011, U.S.
Corps of Engineers, in litt.). This order was issued in relation to the
need for a section 404 permit under the Clean Water Act (33 U.S.C. 1251
et seq.). A citation from a Texas Parks and Wildlife Department (TPWD)
game warden was also issued in October 2011, due to the need for a sand
and gravel permit from the TPWD for work being conducted within TPWD
jurisdiction (Heger 2012a, pers. comm.). The citation was issued
because the Salado Chamber of Commerce had been directed by the game
warden to stop work within TPWD jurisdiction, which they did
temporarily, but work started again contrary to the game warden's
directive (Heger 2012a, pers. comm.). A sand and gravel permit was
obtained on March 21, 2012. The spring run modifications were already
completed by this date, but further modifications in the springs were
prohibited by the permit. Additional work on the bank upstream of the
springs was permitted and completed (Heger 2012b, pers. comm.).
Unit 5: King's Garden Main Spring Unit
Unit 5 consists of approximately 68 ac (28 ha) of private land in
northern Williamson County, Texas. The unit is undeveloped land. The
unit contains King's Garden Main Spring, which is occupied by the
Salado salamander. The surface population of King's Garden Main Spring
has been observed at the spring's outlet. The unit contains the
physical or biological features essential for the conservation of the
species.
Unit 6: Cobbs Spring Unit
Unit 6 consists of approximately 68 ac (28 ha) of private land
located in northwestern Williamson County, Texas. The unit is
undeveloped land. This unit contains Cobbs Spring, which is occupied by
the Salado salamander. Cobbs Springs is located on Cobbs Springs
Branch. The subsurface population of Cobbs Spring has been observed in
Cobbs Well (Gluesenkamp 2011a, TPWD, pers. comm.), which is located
approximately 328 ft (100 m) to the southwest of the spring. The unit
contains the physical or biological features essential for the
conservation of the species.
Unit 7: Cowan Creek Spring Unit
Unit 7 consists of approximately 68 ac (28 ha) of private land
located in west-central Williamson County, Texas. The northern portion
of the unit is residential development; the remainder is undeveloped.
This unit contains Cowan Creek Spring, which is occupied by the Salado
salamander. The spring is located on Cowan Creek. The unit contains the
physical or biological features essential for the conservation of the
species.
Unit 8: Walnut Spring Unit
Unit 8 consists of approximately 68 ac (28 ha) of private and
Williamson County land located in west-central Williamson County,
Texas. The western, eastern, and northeastern portions of the unit
contain low-density residential development; the southern and north-
central portions are undeveloped. The extreme southeastern corner of
the unit is part of Williamson County Conservation Foundation's Twin
Springs Preserve. This unit contains Walnut Spring, which is occupied
by the Salado salamander. The spring is located on Walnut Spring
Hollow. The unit contains the physical or biological
[[Page 46556]]
features essential for the conservation of the species.
Unit 9: Twin Springs Unit
Unit 9 consists of approximately 68 ac (28 ha) of private and
Williamson County land located in west-central Williamson County,
Texas. The northern portion of the unit contains low-density
residential development; the remainder of the unit is undeveloped. The
majority of the unit is part of Williamson County Conservation
Foundation's Twin Springs Preserve. The preserve is managed by
Williamson Conservation Foundation as a mitigation property for the
take of golden-cheeked warbler and Bone Cave harvestman under the
Williamson County Regional HCP. The preserve habitat will be
undeveloped in perpetuity. Salamander populations are monitored, and
there is some control of public access. This unit contains Twin
Springs, which is occupied by the Salado salamander. The spring is
located on Taylor Ray Hollow, a tributary of Lake Georgetown. The unit
contains the physical or biological features essential for the
conservation of the species.
Unit 10: Bat Well Cave Unit
Unit 10 consists of approximately 68 ac (28 ha) of private land
located in west-central Williamson County, Texas. The western,
northern, and southern portion of the unit contains residential
development. This unit contains Bat Well Cave, a cave occupied by the
Salado salamander. The cave is located in the Cowan Creek watershed.
Only subsurface critical habitat was designated for this cave
population. The unit contains the physical or biological features
essential to the conservation of the species.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2), is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, be considered likely to destroy or
adversely modify critical habitat include, but are not limited to:
(1) Actions that would physically disturb the surface or subsurface
habitat
[[Page 46557]]
upon which these two salamander species depend. Such activities could
include, but are not limited to, channelization, removal of substrate,
clearing of vegetation, construction of commercial and residential
development, quarrying, and other activities that result in the
physical destruction of habitat or the modification of habitat so that
it is not suitable for the species.
(2) Actions that would increase the concentration of sediment or
contaminants in the surface or subsurface habitat. Such activities
could include, but are not limited to, increases in impervious cover in
the surface watershed, inadequate erosion controls on the surface and
subsurface watersheds, and release of pollutants into the surface water
or connected groundwater at a point source or by dispersed release
(non-point source). These activities could alter water conditions to
levels that are harmful to the Georgetown and Salado salamanders or
their prey and result in direct, indirect, or cumulative adverse
effects to these salamander individuals and their life cycles.
Sedimentation can also adversely affect salamander habitat by reducing
access to interstitial spaces.
(3) Actions that would deplete the aquifer to an extent that
decreases or stops the flow of occupied springs or that reduces the
quantity of subterranean habitat used by the species. Such activities
could include, but are not limited to, water withdrawals from aquifers,
increases in impervious cover over recharge areas, and channelization
or other modification of recharge features that would decrease
recharge. These activities could dewater habitat or cause reduced water
quality to levels that are harmful to one of the two salamanders or
their prey and result in adverse effects to their habitat.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation. No DoD lands
with a completed INRMP are within the critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if we determine
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless we determine, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor. On December 18, 2020, we
published a final rule in the Federal Register (85 FR 82376) revising
portions of our regulations pertaining to exclusions of critical
habitat. These final regulations became effective on January 19, 2021,
and apply to critical habitat rules for which a proposed rule was
published after January 19, 2021. Consequently, these new regulations
do not apply to this final rule.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise discretion to exclude
the area only if such exclusion would not result in the extinction of
the species. We describe below the process that we undertook for taking
into consideration each category of impacts and our analyses of the
relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects we consider
our draft economic analysis (DEA) of the proposed critical habitat
designation and related factors (Industrial Economics, Incorporated
(IEc) 2020, entire). The analysis, dated April 14, 2020, was made
available for public review from September 23, 2020, through November
16, 2020 (IEc 2020, entire). The DEA addressed probable economic
impacts of critical habitat designation for the Georgetown and Salado
salamanders. Following the close of the comment period, we reviewed and
evaluated all information submitted during the comment period that may
pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. Additional information
relevant to the probable incremental economic impacts of critical
habitat designation for the Georgetown and Salado salamanders is
summarized below and available in the screening analysis for the
Georgetown and Salado salamanders (IEc 2021, entire), available at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>.
We received public comment on our DEA during the public comment
period and updated the analysis based on public comment. The economic
analysis now acknowledges ``The designation of critical habitat may
cause developers to perceive that private lands will be subject to use
restrictions or litigation from third parties, resulting in costs. Data
limitations prevent quantification of the possible incremental
reduction in property values'' (IEc 2021, p. 2 & 12-13). The updates
made to the DEA did not change the overall conclusions of the analysis.
As part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the designation of
critical habitat for the Georgetown and Salado salamanders, first we
identified, in the IEM dated April 14, 2020, probable incremental
economic impacts associated with the following categories of
activities: (1) Future stream/river crossings and bridge replacements
and maintenance; (2) pipeline construction, replacement, maintenance,
or removal; (3) electrical transmission line construction; (4) stream
restoration activities for habitat improvement; (5) herbicide and
pesticide use along stream banks; (6) irrigation and water supply
system installations; (7) livestock management and livestock facilities
construction; (8) bank stabilization projects; (9) disaster
[[Page 46558]]
debris removal; (10) repairs to existing and damaged roads, bridges,
utilities, and parks; (11) construction of tornado safe rooms, and
demolition of flood-prone structures; (12) return of land to open space
in perpetuity; and (13) removal of hazardous fuels in wildland urban
interface to reduce the risk of catastrophic wildfire. We considered
each industry or category individually. Additionally, we considered
whether their activities may have any Federal involvement. Critical
habitat designation generally will not affect activities that do not
have any Federal involvement; under the Act, designation of critical
habitat only affects activities conducted, funded, permitted, or
authorized by Federal agencies. In areas where the Georgetown or Salado
salamander are present, Federal agencies already are required to
consult with the Service under section 7 of the Act on activities they
fund, permit, or implement that may affect the species. When this
critical habitat designation is effective (see DATES, above),
consultations to avoid the destruction or adverse modification of
critical habitat will be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Georgetown and Salado salamander's critical habitat. Because all of the
units we are designating as critical habitat for the Georgetown and
Salado salamanders are occupied, we do not expect that the critical
habitat designation will result in any additional consultations above
and beyond those caused by the species' listing. The conservation
recommendations provided to address impacts to the occupied critical
habitat will be the same as those recommended to address impacts to the
species because the habitat tolerances of the Georgetown and Salado
salamanders are inextricably linked to the health, growth, and
reproduction of the salamanders, which are present and confined year-
round in their occupied critical habitat. Furthermore, because the
designated critical habitat and the Georgetown and Salado salamanders'
known range are identical, the results of consultation under adverse
modification are not likely to differ from the results of consultation
under jeopardy. In the event of an adverse modification determination,
we expect that reasonable and prudent alternatives to avoid jeopardy to
the species will also avoid adverse modification of the critical
habitat. The only incremental impact of critical habitat designation
that we anticipate is the small (not expected to exceed $38,500 per
year) administrative effort required during section 7 consultation to
document effects on the physical and biological features of the
critical habitat and whether the action appreciably diminishes the
value of critical habitat as a whole for the conservation of the listed
species (IEc 2021).
The critical habitat designations for the Georgetown and Salado
salamanders amount to a total of approximately 1,315 ac (538 ha) in
Bell and Williamson Counties, Texas. In these areas, any actions that
may affect the species or its habitat will also affect designated
critical habitat, and it is unlikely that any additional conservation
efforts will be recommended to address the adverse modification
standard over and above those recommended as necessary to avoid
jeopardizing the continued existence of the Georgetown and Salado
salamanders. While this additional analysis will require time and
resources by both the Federal action agency and the Service, it is
believed that, in most circumstances, these costs will predominantly be
administrative in nature and will not be significant.
Incremental costs are likely to be minor and primarily limited to
administrative efforts that consider adverse modification in
consultation. This finding is based on these factors: (1) All
activities with a Federal nexus occurring within the critical habitat
designations will be subject to section 7 consultation requirements
regardless of critical habitat designation due to the presence of
listed species; and (2) since the Service predicts that the majority of
project modifications avoiding jeopardy and adverse modification
overlap, there will only be a limited number of project modification
requests that are solely caused by a critical habitat designation (IEc
2020). The estimated $38,500 per year of incremental costs associated
with the designation of critical habitat is well below $100 million
and, therefore, is unlikely to trigger additional requirements under
State or local regulations. Further, while some perceptional effects
may arise, they are not expected to result in substantial costs.
Consideration of Impacts on National Security and Homeland Security
The Service must consider impacts on national security, including
homeland security, under section 4(a)(3)(B)(i) and on those DoD lands
or areas not covered by section 4(a)(3)(B)(i), because section 4(b)(2)
requires the Service to consider those impacts whenever it designates
critical habitat. Accordingly, if DoD, Department of Homeland Security
(DHS), or another Federal agency has requested exclusion based on an
assertion of national-security or homeland-security concerns, or we
have otherwise identified national-security or homeland-security
impacts from designating particular areas as critical habitat, we
generally have reason to consider excluding those areas. We did not
identify any national security or homeland security impacts, nor did we
receive any requests for exclusion based on national or homeland
security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area--such as HCPs, safe
harbor agreements (SHAs), or candidate conservation agreements with
assurances (CCAAs)--or whether there are non-permitted conservation
agreements and partnerships that may be impaired by designation of, or
exclusion from, critical habitat. In addition, we look at whether
Tribal conservation plans or partnerships, Tribal resources, or
government-to-government relationships of the United States with Tribal
entities may be affected by the designation. We also consider any
State, local, public-health, community-interest, environmental, or
social impacts that might occur because of the designation.
Exclusions
Exclusions Based on Economic Impacts
The Service considered the economic impacts of the critical habitat
designation as described above. Based on this information, the
Secretary has determined not to exercise her discretion to exclude any
areas from this designation of critical habitat for the Georgetown or
Salado salamander based on economic impacts.
[[Page 46559]]
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we have determined that the lands within
the designation of critical habitat for Georgetown and Salado
salamanders are not owned or managed by DoD or the Department of
Homeland Security. Therefore, we anticipate no impact on national
security or homeland security. Based on this information, the Secretary
has determined not to exercise her discretion to exclude any areas from
this designation of critical habitat for the Georgetown or Salado
salamander based on impacts on national security or homeland security.
Exclusions Based on Other Relevant Impacts
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
In the case of the Georgetown and Salado salamanders, the benefits
of critical habitat include public awareness of the presence of the two
species and the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for the two species due to
protection from destruction or adverse modification of critical
habitat. Continued implementation of an ongoing management plan that
provides conservation equal to or more than the protections that result
from a critical habitat designation would reduce those benefits of
including that specific area in the critical habitat designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided by entities seeking exclusion,
any additional public comments we received, and the best scientific
data available, we evaluated whether certain lands in the proposed
critical habitat designation were appropriate for exclusion from this
final designation under section 4(b)(2) of the Act. If our analysis
indicated that the benefits of excluding lands from the final
designation outweighed the benefits of designating those lands as
critical habitat, then we identified those areas for the Secretary to
exercise her discretion to exclude those lands from the final
designation, unless exclusion would result in extinction.
In the paragraphs below, we provide a detailed balancing analysis
of the areas being excluded under section 4(b)(2) of the Act. Table 3
below provides approximate areas (ac, ha) of lands that meet the
definition of critical habitat but that we are excluding from this
final critical habitat designation under section 4(b)(2) of the Act.
Table 3--Areas Excluded by Critical Habitat Unit for the Salado Salamander
----------------------------------------------------------------------------------------------------------------
Proposed
critical Area excluded Final critical
Critical habitat unit habitat (ac (ac (ha)) habitat (ac
(ha)) (ha))
----------------------------------------------------------------------------------------------------------------
1. Hog Hollow Spring Unit....................................... 68 (28) 68 (28) 0
2. Solana Spring Unit........................................... 68 (28) 68 (28) 0
3. Cistern Spring Unit.......................................... 68 (28) 68 (28) 0
----------------------------------------------------------------------------------------------------------------
Private or Other Non-Federal Conservation Plans or Agreements and
Partnerships, in General
We sometimes exclude specific areas from critical habitat
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant
partnerships. A conservation plan or agreement describes actions that
are designed to provide for the conservation needs of a species and its
habitat, and may include actions to reduce or mitigate negative effects
on the species caused by activities on or adjacent to the area covered
by the plan. Conservation plans or agreements can be developed by
private entities with no Service involvement, or in partnership with
the Service, sometimes through the permitting process under Section 10
of the Act.
When we undertake a discretionary section 4(b)(2) analysis, we
evaluate a variety of factors to determine how the benefits of any
exclusion and the benefits of inclusion are affected by the existence
of private or other non-Federal conservation plans or agreements and
their attendant partnerships. A non-exhaustive list of factors that we
will consider for non-permitted plans or agreements is shown below.
These factors are not required elements of plans or agreements, and
some elements may not apply to a particular plan or agreement.
(i) The degree to which the plan or agreement provides for the
conservation of the species or the essential physical or biological
features (if present) for the species.
(ii) Whether there is a reasonable expectation that the
conservation management strategies and actions contained in a
management plan or agreement will be implemented.
(iii) The demonstrated implementation and success of the chosen
conservation measures.
(iv) The degree to which the record of the plan supports a
conclusion that a
[[Page 46560]]
critical habitat designation would impair the realization of benefits
expected from the plan, agreement, or partnership.
(v) The extent of public participation in the development of the
conservation plan.
(vi) The degree to which there has been agency review and required
determinations (e.g., State regulatory requirements), as necessary and
appropriate.
(vii) Whether National Environmental Policy Act (NEPA; 42 U.S.C.
4321 et seq.) compliance was required.
(viii) Whether the plan or agreement contains a monitoring program
and adaptive management to ensure that the conservation measures are
effective and can be modified in the future in response to new
information.
Salado Salamander Units 1, 2, and 3--Solana Ranch Preserve
In 2013, the Texas Chapter of The Nature Conservancy was awarded
funding through a Texas Parks and Wildlife Department non-traditional
section 6 grant (Solana Ranch Recovery Land Acquisition, Grant TX E-
154-RL-1) to obtain a conservation easement on 256 ac (104 ha) of the
privately owned Solana Ranch in Bell County, Texas. The Nature
Conservancy acquired the conservation easement in perpetuity from the
landowner, Michaux Holdings Ltd., on June 29, 2016. That portion of the
Solana Ranch included in the conservation easement, Solana Ranch
Preserve, encompasses three spring outlets (i.e., Cistern, Hog Hollow,
and Solana Springs) occupied by the Salado salamander (Francell 2012,
p. 3) and the upstream lands surrounding these springs. The springs
comprise the following critical habitat units for the Salado
salamander: Hog Hollow Spring (Unit 1; 68 ac (28 ha)), Solana Spring
(Unit 2; 68 ac (28 ha)), and Cistern Spring (Unit 3; 68 ac (28 ha)).
The springs are located on a tributary to Rumsey Creek in the Salado
Creek drainage and are upstream of other springs occupied by the Salado
salamander along Salado Creek to the northeast. All three springs are
considered high-quality habitat for the Salado salamander (Gluesenkamp
2011b, TPWD, pers. comm.). The Solana Ranch Preserve conservation
easement establishes that these lands are protected and managed for the
benefit of the Salado salamander. Management activities include: (1)
Protection of the site from development or encroachment, (2)
maintenance of the site as permanent open space that has been left in
its natural vegetative state, (3) maintenance and repair of existing
enclosure fences around springs, and (4) research approved by the
landowner. Grazing, hunting, and other recreational activities will be
allowed.
The perpetual Solana Ranch Preserve conservation easement will
result in long-term protection of the three springs located on Solana
Ranch, including areas immediately upstream of the springs to maintain
water quality. By protecting the springs and their surrounding areas,
occupied Salado salamander habitat will be protected from development
and other threats. Based on the actions to benefit the Salado
salamander, we considered excluding a total of 204 ha (84 ac) of
critical habitat within Solana Ranch Preserve lands, specifically Hog
Hollow Spring (Unit 1; 68 ac (28 ha)), Solana Spring (Unit 2; 68 ac (28
ha)), and Cistern Spring (Unit 3; 68 ac (28 ha)), from this final
Salado salamander critical habitat designation under section 4(b)(2) of
the Act.
Benefits of Inclusion--Solana Ranch Preserve: The principal benefit
of including an area in critical habitat designation is the requirement
of Federal agencies to ensure that actions that they fund, authorize,
or carry out are not likely to result in the destruction or adverse
modification of any designated critical habitat, which is the
regulatory standard of section 7(a)(2) of the Act under which
consultation is completed. Federal agencies must consult with the
Service on actions that may affect a listed species, and refrain from
actions that are likely to jeopardize the continued existence of such
species. The analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. For some cases, the outcome of
these analyses will be similar, because effects to habitat will often
result in effects to the species. Thus, critical habitat designation
may provide greater benefits to the recovery of a species than listing
would alone. Therefore, critical habitat designation may provide a
regulatory benefit for the Salado salamanderon lands covered under the
Solana Ranch Preserve conservation easement when there is a Federal
nexus present for a project that might adversely modify critical
habitat.
Another possible benefit of including lands in critical habitat is
public education regarding the potential conservation value of an area
that may help focus conservation efforts on areas of high conservation
value for certain species. We consider any information about the Salado
salamander and its habitat that reaches a wide audience, including
parties engaged in conservation activities, to be valuable. Designation
of critical habitat would provide educational benefits by informing
Federal agencies and the public about the presence of listed species
for all units.
In summary, we find that the benefits of inclusion of 204 ha (84
ac) lands within the Solana Ranch Preserve conservation easement are:
(1) A regulatory benefit when there is a Federal nexus present for a
project that might adversely modify critical habitat; and (2)
educational benefits for the Salado salamander and its habitat.
Benefits of Exclusion--Solana Ranch Preserve: The benefits of
excluding 204 ha (84 ac) of land within the Solana Ranch Preserve,
under a perpetual conservation easement held by The Nature Conservancy,
from the designation of critical habitat for the Salado salamander are
substantial and include: (1) Continuance and strengthening of our
effective working relationship with private landowners to promote
voluntary, proactive conservation of the Salado salamander and its
habitat as opposed to reactive regulation; (2) allowance for continued
meaningful collaboration and cooperation in working toward species
recovery, including conservation benefits that might not otherwise
occur; and (3) encouragement of developing additional conservation
easements and other conservation and management plans in the future for
other federally listed and sensitive species.
Many landowners perceive critical habitat as an unfair and
unnecessary regulatory burden. According to some, the designation of
critical habitat on private lands significantly reduces the likelihood
that landowners will support and carry out conservation actions (Main
et al.1999, p. 1,263; Bean 2002, p. 2). The magnitude of this negative
outcome is greatly amplified in situations where active management
measures (such as reintroduction, fire management, and control of
invasive species) are necessary for species conservation (Bean 2002,
pp. 3-4). We find that the judicious exclusion of specific areas of
non-federally owned lands from critical habitat designations can
contribute to species recovery and provide a superior level of
conservation than critical habitat alone. We find that, where
consistent with the discretion provided by the Act, it is necessary to
implement policies that provide positive incentives to private
landowners to voluntarily conserve natural resources and that remove or
reduce disincentives to conservation
[[Page 46561]]
(Wilcove et al. 1996, pp. 1-15; Bean 2002, pp. 1-7).
Partnerships with non-Federal landowners are vital to the
conservation of listed species, especially on non-Federal lands;
therefore, the Service is committed to supporting and encouraging such
partnerships through the recognition of positive conservation
contributions. In the case considered here, excluding these areas from
critical habitat will help foster the partnerships the landowners and
land managers in question have developed with Federal and State
agencies and local conservation organizations; will encourage the
continued implementation of voluntary conservation actions for the
benefit ofthe Salado salamander and its habitat on these lands; and may
also serve as a model and aid in fostering future cooperative
relationships with other parties here and in other locations for the
benefit of other endangered or threatened species. We find that the
judicious exclusion of specific areas of non-federally owned lands from
critical habitat designation can contribute to species recovery and
provide a superior level of conservation than critical habitat.
Therefore, we consider the positive effect of excluding active
conservation partners from critical habitat to be a significant benefit
of exclusion.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Solana
Ranch Preserve: We evaluated the exclusion of 204 ha (84 ac) of private
land within the boundaries of the 256 ac (104 ha) Solana Ranch under a
perpetual conservation easement with The Nature Conservancy, from our
designation of critical habitat, and we determined the benefits of
excluding these lands outweigh the benefits of including them as
critical habitat for the Salado salamander.
We conclude that the additional regulatory and educational benefits
of including these lands as critical habitat are relatively small,
because of the unlikelihood of a Federal nexus on these private lands.
These benefits are further reduced by the existence of a 256-ac (104-
ha) conservation easement on the Solana Ranch that contains 204 ha (84
ac) of proposed critical habitat. We anticipate that there will be
little additional Federal regulatory benefit to the taxon on private
land because there is a low likelihood that those parcels will be
negatively affected to any significant degree by Federal activities
requiring section 7 consultation, and ongoing management activities
indicate there would be no additional requirements pursuant to a
consultation that addresses critical habitat.
Furthermore, the potential educational and informational benefits
of critical habitat designation on lands containing the physical or
biological features essential to the conservation of the Salado
salamander would be minimal, because the landowners and land managers
under consideration have demonstrated their knowledge of the species
and its habitat needs in the process of developing their partnerships
with the Service. Additionally, the current active conservation efforts
on some of these lands contribute to our knowledge of the species
through monitoring and scientific research.
In contrast, the benefits derived from excluding these owners and
enhancing our partnership with these landowners and land managers is
significant. Because voluntary conservation efforts for the benefit of
listed species on non-Federal lands are so valuable, the Service
considers the maintenance and encouragement of conservation
partnerships to be a significant benefit of exclusion. The development
and maintenance of effective working partnerships with non-Federal
landowners for the conservation of listed species is particularly
important in areas such as Texas, a State with relatively little
Federal landownership but many species of conservation concern.
Excluding these areas from critical habitat will help foster the
partnerships the landowners and land managers in question have
developed with Federal and State agencies and local conservation
organizations, and will encourage the continued implementation of
voluntary conservation actions for the benefit of the Salado salamander
and its habitat on these lands. In addition, these partnerships not
only provide a benefit for the conservation of these species, but may
also serve as a model and aid in fostering future cooperative
relationships with other parties in this area of Texas and in other
locations for the benefit of other endangered or threatened species.
We find that excluding areas from critical habitat that are
receiving both long-term conservation and management for the purpose of
protecting the habitat that supports the Salado salamander will
preserve our partnership with the Solana Ranch owner and operator and
will encourage future collaboration towards conservation and recovery
of listed species. The partnership benefits are significant and
outweigh the small potential regulatory, educational, and ancillary
benefits of including the land in the final critical habitat
designation for the Salado salamander. Therefore, the Solana Ranch
Preserve conservation easement provides greater protection of habitat
for the Salado salamander than could be gained through the project-by-
project analysis of a critical habitat designation.
Exclusion Will Not Result in Extinction of the Species--Solana
Ranch Preserve: We determined that the exclusion of 204 ha (84 ac) of
land within the boundaries of the Solana Ranch Preserve conservation
easement held by The Nature Conservancy in perpetuity will not result
in extinction of the taxon. Protections afforded the taxon and its
habitat by the conservation easement provide assurances that the taxon
will not go extinct as a result of excluding these lands from the
critical habitat designation.
An important consideration as we evaluate these exclusions and
their potential effect on the species in question is that critical
habitat does not carry with it a regulatory requirement to restore or
actively manage habitat for the benefit of listed species; the
regulatory effect of critical habitat is only the avoidance of
destruction or adverse modification of critical habitat should an
action with a Federal nexus occur. It is, therefore, advantageous for
the conservation of the species to support the proactive efforts of
non-Federal landowners who are contributing to the enhancement of
essential habitat features for listed species through exclusion. The
jeopardy standard of section 7 of the Act will also provide protection
in these occupied areas when there is a Federal nexus. Therefore, based
on the above discussion, the Secretary is exercising her discretion to
exclude 204 ha (84 ac) of land from the designation of critical habitat
for the Salado salamander.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866
while calling for improvements in the nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public
[[Page 46562]]
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
Regulatory Flexibility Act (5 U.S.C. 601)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate only the
p
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