Endangered and Threatened Wildlife and Plants; Notice of Six Month Extension on the Proposed Rule to List the Barton Springs Salamander as an Endangered Species

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC22

Endangered and Threatened Wildlife and Plants; Notice of Six

Month Extension on the Proposed Rule to List the Barton Springs

Salamander as an Endangered Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of extension.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) gives notice that

the deadline to determine whether the Barton Springs salamander

(Eurycea sosorum) is an endangered species under the Endangered Species

Act of 1973 (Act), as amended, is extended for a period not to exceed

August 30, 1996.

DATES: The new deadline for final action on the proposed listing of the

Barton Springs salamander as an endangered species is August 30, 1996.

The public comment period on this proposed listing was closed on July

10, 1996 by virtue of an order issued on that date by the United States

District Court for the Western District of Texas.

ADDRESSES: Inquiries regarding the proposed listing should be sent to

the U.S. Fish and Wildlife Service, Austin Ecological Services Field

Office, 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, U.S. Fish and

Wildlife Service, Ecological Services, 10711, Burnet Road, Suite 200,

Austin, Texas 78758 (512) 490-0057, facsimile (512) 490-0974.

SUPPLEMENTARY INFORMATION:

Background

The Service published a proposed rule to list the Barton Springs

salamander as an endangered species on February 17, 1994 (59 FR 7968).

As set forth in the proposal, the primary threat to this species is

contamination of the waters that supply Barton Springs by potential

catastrophic events and chronic degradation resulting from urban

activities. Also of concern are disturbances to the salamander's above-

ground springhead habitats (the waters in Barton Springs, Eliza Pool,

and Sunken Garden Springs) and reduced groundwater supplies resulting

from increased groundwater withdrawal.

The comment period on the proposed listing originally closed April

18, 1994. It was reopened May 26, 1994 and closed July 1, 1994 (59 FR

27257; May 26, 1994). On March 19, 1995, the Service published a notice

extending the deadline for final action on this proposed listing for a

period of up to six months and the public comment period was reopened

until May 17, 1995 (60 FR 13105). The notice indicated this extension

was necessary because, ``during the comment periods and subsequent to

the close of comment on this proposal, the Service received

recommendations and information relevant to a final decision on the

listing of the salamander. In order to adequately incorporate all

pertinent information in the deliberation leading

[[Page 38703]]

to a decision and to ensure an opportunity for public comment on as

complete an administrative record as possible, the deadline for final

action on this proposal is being extended and the comment period

reopened'' (60 FR 13105).

In the July 10, 1996, Order of United States District Court for the

Western District of Texas (``July 10 Order''), the court found that,

``the extension was not valid because an extension under the ESA can

only be granted by the Secretary based on a finding that there is

substantial disagreement regarding the sufficiency and accuracy of the

available data upon which the listing decision is to be made.''

Specifically, the court found that the need to consider a report by the

Barton Springs/Edwards Aquifer Conservation District did not justify

the extension. The court found that ``Congress determined that there

must be substantial scientific disagreement in order to warrant an

extension * * *.'' However, the Act indicates ``substantial

disagreement'' is necessary for a six month extension to be appropriate

and does not specify that disagreement must be scientific. In that the

inadequacy of existing regulatory mechanisms is one of the five

elements which the Service must consider in determining whether to list

a species, 16 U.S.C. 1533(a)(1)(D), the Service believes that

substantial disagreement concerning this aspect of the listing decision

constitutes a valid basis for a six month extension since data

regarding that element is ``relevant to the determination * * *

concerned * * *.'' 16 U.S.C. 1533(b)(6)(B)(i).

The court ordered the Secretary to make a decision whether to list

the salamander as endangered, withdraw the listing, or extend the time

to make a decision by no more than six months. The Secretary now finds

that there exists substantial disagreement regarding the sufficiency or

accuracy of the data regarding the inadequacy of existing regulatory

mechanisms upon which the listing decision is to be made.

The court anticipated the possibility that the Secretary might opt

for a six month extension and specified a method by which the six

months should be calculated for the purposes of this listing. The court

instructed the Secretary that in the event such an extension was deemed

warranted, that, ``the six month period began on February 17, 1995,

(the date upon which the Secretary was to make some determination) and

continues until April 10, 1995 (the starting date of the moratorium--54

days). The six month period commenced again on April 26, 1996, when the

President waived the budget moratorium. Therefore, the six month

extension, if invoked, expires on August 30, 1996'' July 10 Order at 7.

Since the Southwest Region identified processing the final

determination for the Barton Springs salamander as its highest priority

under the listing priority guidance (61 FR 24722; May 16, 1996), the

Service intends to issue a final determination by August 30, 1996.

Section 4(b)(6)(I) of the Act indicates that the Secretary may

extend the one year period following proposal for six months ``for

purposes of soliciting additional data.'' The Service is unable to

solicit additional data at this time since the court has ordered the

comment period, which the Service reopened on June 24, 1996 (61 FR

32413), closed effective July 10, 1996, the date of its order. At the

time the Service reopened the comment period, however, it justified

that action by noting the need to obtain additional information on

``proposed regulatory protection under State authorities including

water quality protection zones, nonpoint source pollution programs,

monitoring, and Edwards Aquifer-specific actions * * *. To evaluate

effectively whether the existing regulatory structure may adequately

protect the species, the Service must obtain further information on

these developments'' (61 FR 32414). The Service also reprinted two

letters, one from the Texas Natural Resources Conservation Commission

and one from Valarie Bristol, Travis County Commissioner, requesting

the comment period be reopened and noting regulatory initiatives

concerning which information should be gathered. In the notice

reopening the comment period, the Service advised interested parties to

submit any information as soon as possible because the comment period

might be closed by the courts without advance notice. As described

previously, the U.S. District Court for the Western District of Texas

did order the comment period closed on July 10, 1996. However, during

the two weeks the comment period was open, the Service received five

comment letters, including comments from three Texas state regulatory

agencies. Three of these comments referred specifically to the adequacy

of existing regulatory mechanisms. Therefore, while the Service will

not be able to seek additional information subsequent to the finding

the Secretary makes today, the Service believes the public was given an

opportunity to provide additional information in the very recent past.

During the next several weeks, the information received during the

comment period will be analyzed and the comments responded to in the

final decision document, thus fulfilling the goal of the six month

extension and assuring that the Service will appropriately evaluate the

five factors provided in section 4 of the Act. Such consideration would

not be possible if the Service were to make a final decision regarding

the proposal to list the Barton Springs salamander as endangered by

July 23, 1996, as required by the July 10 Order in the absence of a six

month extension.

Authority

The authority for this action is the Endangered Species Act of

1973, as amended (16 U.S.C. 1531 et seq.).

Dated: July 18, 1996.

John G. Rogers,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 96-18685 Filed 7-24-96; 8:45 am]

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