[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38702-38703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18685]
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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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