Endangered and Threatened Wildlife and Plants; Reopening of Comment Period on Proposed Endangered Status for Barton Springs Salamander

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC22

Endangered and Threatened Wildlife and Plants; Reopening of

Comment Period on Proposed Endangered Status for Barton Springs

Salamander

AGENCY: Fish and Wildlife Service, Interior.

[[Page 32414]]

ACTION: Proposed rule; notice of reopening of comment period.

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SUMMARY: The Fish and Wildlife Service provides notice that the comment

period on the proposed endangered status for Barton Springs salamander

(Eurycea sosorum) is reopened.

DATES: Comments from all interested parties must be received by July

24, 1996. Although every effort will be made to consider comments

received up to July 24, 1996 the Fish and Wildlife Service may be

required to close the comment period in advance of July 24, 1996 in

order to comply with any orders of the court in Save Our Springs Legal

Defense Fund v. Babbitt, Civil No. MO-95-CA-230 (W.D. Tex.), ongoing

litigation involving this rulemaking.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Field Supervisor, U.S. Fish and Wildlife Service, 10711

Burnet Road, Suite 200, Austin, Texas 78758. Comments and materials

received will be available for public inspection, by appointment,

during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Field Supervisor (see ADDRESSES

section) (512/490-0057).

SUPPLEMENTARY INFORMATION: A proposed rule to list the Barton Springs

salamander as endangered was published on February 17, 1994 (59 FR

7968). The primary threat to this species is contamination of waters in

the portion of the Edwards Aquifer that feeds the springs, due to

catastrophic events (such as hazardous materials spills) and chronic

degradation resulting from urban activities. Also of concern are

reduced groundwater supplies due to increased groundwater withdrawal

and pool maintenance operations where the salamander occurs. This

proposal, if made final, will implement Federal protection provided by

the Act for the Barton Springs salamander.

The comment period on this proposed rule originally closed April

18, 1994. It was reopened on May 26, 1994, and again on March 10, 1995.

The last comment period closed May 17, 1995. On April 10, 1995, Public

Law 104-06 imposed a moratorium preventing addition of any species to

the Threatened and Endangered Species List. Through a series of

moratoria, funding restrictions, and continuing resolutions that

prohibition remained in effect until April 26, 1996. On that date, the

Omnibus Appropriations Act, which provided $4,000,000 to the Service to

fund listing activities for the remainder of fiscal year 1996, was

enacted (Pub. L. No. 104-134, 110 Stat. 1321, (1996)). Because the

Service expended $233,000 of this amount during the first six months of

1996 under the rates of operation provided by the various continuing

resolutions, $3,767,000 remains for the balance of the fiscal year (61

FR 24722, 24723; May 16, 1996). The Omnibus Appropriations Act

contained a moratorium on certain listing activities but provided that

the President could waive the moratorium. On April 26, 1996, President

Clinton suspended the provision limiting implementation of Section 4 of

the Act (61 FR 24667; May 16, 1996).

On May 16, 1996, the Service published guidance which set

priorities for the listing program in order to ensure that the scarce

resources available through the end of the fiscal year would provide

the greatest conservation benefit possible (61 FR 24722; Final Listing

Priority Guidance. This guidance identified emergency listings as Tier

1 activities, in other words, the highest priority activity the Service

will undertake during the remainder of the fiscal year. Completing

final determinations for existing proposals, such as the Barton Springs

salamander, are Tier 2 activities, which will be undertaken to the

extent resources are available. Which final determinations will be

completed depends on a number of factors including magnitude and

imminence of threats to the species. Id. at 24727.

Region 2 of the Service, which includes the area inhabited by the

Barton Springs salamander, conducted a prioritization review in

accordance with the Notice of Final Listing Priority Guidance. This

process considered all pending actions to determine whether affected

species faced an emergency situation as defined by Section 4(b)(7) of

the Act, and the Service's implementing regulations. The Barton Springs

salamander has been recommended by Region 2 as its number one priority

for final determination. In determining which species to focus its

listing resources on, Region 2 evaluated the threats to all species

that have been proposed for listing. Region 2 determined that while the

Barton Springs salamander is its number one listing priority, the

threats to the species are not severe enough to warrant emergency

status. However, the Service continues to monitor the status of the

Barton Springs salamander and other Edwards Aquifer species in case

emergency listing becomes necessary. Having given the Barton Springs

salamander top priority, Region 2 has begun, as funds are now again

available, work on making a final decision on this proposed listing.

The Service's Final Listing Priority Guidance notes that the

inaction forced upon the Service by the moratorium and funding

limitations may result in a need to reopen comment periods due to

unresolved questions or the potential for the existence of new

information. (61 FR 24727). (See also 61 FR 9651, 9653) (March 11,

1996; interim guidance). Pursuant to this guidance, it is necessary to

reopen the comment period to ensure the Service has the best scientific

and commercial information currently available to make a final listing

determination regarding the Barton Springs salamander.

The last comment period on the proposal to list the Barton Springs

salamander closed on May 17, 1995, over one year ago. The Service is

aware of new information relevant to listing this species dated after

the close of the comment period. Specifically, proposed regulatory

protection under State authorities including water quality protection

zones, nonpoint source pollution programs, monitoring, and Edwards

Aquifer-specific actions have been brought to the Service's attention.

Since the close of the comment period, the Service has learned that the

State of Texas has proposed and accepted comments on new regulations

governing development in the Barton Springs watershed that would

require the state to review and approve water quality plans submitted

for new developments. The Service has also learned that the Texas

Natural Resource Conservation Commission, the Texas Parks and Wildlife

Department, and the Texas Department of Transportation have entered

into a Memorandum of Understanding concerning water quality protections

during highway construction. These efforts are aimed at protecting

water quality threats, to which were identified as one of the primary

factors threatening the existence of the Barton Springs salamander in

the proposal. (59 FR 7968, 7972). Information on these regulatory

initiatives does not currently exist in the administrative record. To

evaluate effectively whether the existing regulatory structure may

adequately protect the species, the Service must obtain further

information on these developments. The Act requires the Service to base

listing decisions on the ``best scientific and commercial information

available,'' 16 U.S.C. 1533(b)(1)(A), and to consider the ``inadequacy

of existing regulatory mechanisms'' as a factor upon which to base

listing decisions, id. 1533(a)(1)(D). Given these facts, the Service

believes it has an obligation to reopen the public

[[Page 32415]]

comment period on this proposal, while keeping careful watch on the

species' status.

In a letter dated June 3, 1996, Valarie Bristol, Travis County

Commissioner for the County encompassing the Barton Springs segment of

the Edwards Aquifer and Barton Springs itself, requested that the

comment period be reopened in order to accept information regarding the

Balcones Canyonlands Preserve, the Loop 1/Highway 290 Task Force, and

other information. This letter is printed in its entirety here for the

information of potential commenters.

Valarie Bristol,

Travis County Commissioner--Precinct 3, Travis County Administration

Building, 314 W. 11th Street, Room 500, P.O. Box 1748, Austin, Texas

78767, 473-9333

June 3, 1996.

Honorable Bruce Babbitt,

Secretary of the Interior, 1849 C Street, NW, Mailstop 7229,

Washington, D.C. 20240

Dear Secretary Babbitt: As a member of the Travis County

Commissioners' Court, I represent the portion of the county which

includes the Barton Springs segment of the Edwards Aquifer, the five

creeks which overlay it, and the outflow at Barton Springs. This

karst system of water flow is a very special treasure and needs

thoughtful protection of its water quality.

The listing of the Barton Springs salamander under the

Endangered Species Act as an endangered species is a serious

decision that requires full analysis. I am asking that the comment

period on the listing, which was closed in 1994, be re-opened for a

period to allow all significant information which has occurred since

then to become part of the decision.

One major event which has occurred has been the formation of the

Balcones Canyonlands Preserve which sets aside over 30,000 acres in

Travis County, of which 4,000 acres are in the Barton Creek

watershed. The Balcones is an example of a public/private

partnership that brought together the environmental and landowner

communities in an unprecedented level of cooperation for mutual

benefit to preserve eight endangered species.

The Loop 1/Highway 290 Task Force is another example of citizens

and governments trying to balance growth issues (in this case a

highway expansion) with water quality over the aquifer recharge

zone. State Representative Sherri Greenberg and I serve as co-chairs

of the Loop 1/Highway 290 Task Force and we have been gathering

extensive information on the water quality issues surrounding all

highway construction in the aquifer area.

Travis County has completed a road project which included an EPA

funded vegetation experiment to test the best method for cleaning

road area runoff.

These are only a few occurrences whose information may be of

importance in the decision on the salamander. I hope that the

comment period can be re-opened to gather all the relevant

information.

I deeply believe that this community wants to do its part in

understanding and protecting the clear, clean water of the Barton

Springs segment of the Edwards Aquifer.

Sincerely,

Valarie Scott Bristol,

Travis County Commissioner, Precinct Three.

The Texas Natural Resource Conservation Commission has also

requested that the comment period be reopened, citing its regulatory

initiatives described above. This letter is also printed in its

entirety here for the information of potential commenters.

Texas Natural Resource Conservation Commission

June 3, 1996.

The Honorable Bruce Babbitt,

Secretary of the Interior, 1849 C Street N.W., Main Interior

Building, Room 6151, Washington, D.C. 20240

Re: Proposed Listing of Barton Springs Salamander

Dear Secretary Babbitt: The purpose of this letter is to request

that you reopen the comment period concerning the proposed listing

of the Barton Springs Salamander. If the comment period is reopened,

the State of Texas will submit to the Fish and Wildlife Service

additional information regarding state and local efforts to protect

this species and its habitat. TNRCC staff believes there is a

substantial amount of information which has not been considered,

much of which was not even available during the original comment

period.

There are numerous examples of state and local regulations

designed to protect water quality. Some of these were in place at

the time of the original listing proposal and some have been created

or modified subsequent to the proposal and some even subsequent to

closing of the comment period. For example, TNRCC has published

proposed rules governing water quality protection zones and will

soon be publishing proposed revisions to the `Edwards Aquifer

Rules'. Both of these rule packages are scheduled to be considered

by the Commission early this fall. Other examples include highway

construction techniques and water quality monitoring resulting from

legislation enacted last year. We do not believe these have been

properly or adequately taken into account as required by the Act,

particularly in light of the magnitude of the decision on the

proposed listing.

Thank you for your consideration of this request.

Very truly yours,

Barry R. McBee,

Chairman.

The Service is thus reopening the comment period to allow

commenters to provide any additional information or comments they have

on the proposed listing. Although every effort will be made to consider

comments received up to July 24, 1996, the Fish and Wildlife Service

may be required to close the comment period in advance of July 24, 1996

in order to comply with any orders of the court in Save Our Springs

Legal Defense Fund v. Babbitt, Civil No. MO-95-CA-230 (W.D. Tex.),

ongoing litigation involving this rulemaking. Comments submitted during

previous comment periods will be considered and need not be

resubmitted.

Author

The primary author of this notice is Steven Helfert (see ADDRESSES

section).

Authority

The authority for this action is the Endangered Species Act of

1973 (16 U.S.C. 1531 et seq.).

Dated: June 17, 1996.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 96-15899 Filed 6-21-96; 8:45 am]

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