[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Proposed Rules]
[Pages 54561-54579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22249]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2009-0009]
[MO 92210-0-0008-B2]
RIN 1018-AV94


Endangered and Threatened Wildlife and Plants; Proposed Rule To 
List the Ozark Hellbender Salamander as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
endangered status under the Endangered Species Act of 1973, as amended 
(Act), for the Ozark hellbender (Cryptobranchus alleganiensis bishopi) 
throughout its entire range. The species is found in southern Missouri 
and northern Arkansas. If we finalize this proposed rule, it would 
extend the Act's protection to the Ozark hellbender. However, we find 
that designation of critical habitat is not prudent for the Ozark 
hellbender at this time, because the increased threat to the species 
from illegal collection and trade outweighs the benefits of designating 
critical habitat. We seek data and comments from the public on this 
proposed listing rule and prudency determination.

DATES: We will accept comments received on or before November 8, 2010. 
We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by October 
25, 2010.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R3-
ES-2009-0009.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: Docket No. FWS-R3-ES-2009-0009; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Charles Scott, Field Supervisor, at 
the U.S. Fish and Wildlife Service, Columbia Missouri Ecological 
Services Field Office, 101 Park De Ville Dr., Suite A, Columbia, MO 
65203 (telephone 573-234-2132). If you use a telecommunications device 
for the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule to list the Ozark hellbender as 
endangered. We particularly seek comments concerning:
    (1) Population survey results for the Ozark hellbender, as well as 
any studies that may show distribution, status, population size, or 
population trends, including indications of recruitment.
    (2) Pertinent aspects of life history, ecology, and habitat use of 
the Ozark hellbender.
    (3) Current and foreseeable threats faced by the Ozark hellbender 
in relation to the five factors (as defined in section 4(a)(1) of the 
Act (16 U.S.C. 1531 et seq.)):
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence and threats to the species or its habitat.
    (4) Our determination of ``not prudent'' for critical habitat.
    (5) Whether there is a need for us to consider developing a 
``similarity of appearance'' listing for the eastern hellbender. 
Section 4(e) of the Act (similarity of appearance cases) allows the 
Secretary to treat any species as an endangered or threatened species 
under the Act if he finds that: (A) It (in this case, the eastern 
hellbender) closely resembles a listed species (in this case, the Ozark 
hellbender) and enforcement personnel would have substantial difficulty 
differentiating between the listed and unlisted species; (B) the effect 
of this difficulty is an additional threat to the listed species: and 
(C) such treatment of the unlisted species would substantially 
facilitate enforcement of the Act for Ozark hellbender.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in addition to the required items 
specified in the previous paragraph, such as your street address, phone 
number, or e-mail address, you may request at the top of your document 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours at the Columbia Missouri 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT 
section).

Background

Species Description
    The Ozark hellbender is a large, strictly aquatic salamander 
endemic to streams of the Ozark plateau in southern Missouri and 
northern Arkansas. Its

[[Page 54562]]

dorso-ventrally flattened body form enables movements in the fast-
flowing streams it inhabits (Nickerson and Mays 1973a, p. 1). Ozark 
hellbenders have a large, keeled tail and tiny eyes. An adult may 
attain a total length of 11.4 to 22.4 inches (in) (29 to 57 centimeters 
(cm)) (Dundee and Dundee 1965, pp. 369-370; Johnson 2000, p. 41). 
Numerous fleshy folds along the sides of the body provide surface area 
for respiration (Nickerson and Mays 1973a, pp. 26-28) and obscure their 
poorly developed costal grooves (grooves in the inner border of the 
ribs; Dundee 1971, p. 101.1). Ozark hellbenders are distinguishable 
from eastern hellbenders (Cryptobranchus alleganiensis alleganiensis) 
by their smaller body size, dorsal blotches, increased skin mottling, 
heavily pigmented lower lip, smooth surfaced lateral line system, and 
reduced spiracular openings (openings where water is expelled out of 
the body) (Grobman 1943, p. 6; Dundee 1971, p. 101.3; Peterson et al. 
1983, pp. 227-231; LaClaire 1993, pp. 1-2). Despite these 
distinguishing characteristics, the two subspecies are not easily or 
readily distinguishable absent the presence of both subspecies or when 
encountered outside of their subspecies' range.
Taxonomy
    The Ozark hellbender was originally described as Cryptobranchus 
bishopi by Grobman (1943, pp. 6-9) from a specimen collected from the 
Current River in Carter County, Missouri. Due to the small amount of 
genetic variation in the genus Cryptobranchus (Merkle et al. 1977, pp. 
550-552; Shaffer and Breden 1989, pp. 1017-1022), Dundee and Dundee 
(1965, p. 370) referred to the Ozark hellbender as a subspecies of the 
eastern hellbender, C. alleganiensis. This designation persisted until 
Collins (1991, pp. 42-43) revived C. bishopi, due to the lack of 
intergradation between the eastern and Ozark hellbenders because of the 
allopatry (occurring in separate, nonoverlapping geographic areas) of 
the populations (Dundee 1971, p. 101.1). Although Ozark hellbenders 
have been shown to be phenotypically and genetically distinct from 
eastern hellbenders (Grobman 1943, pp. 6-9; Dundee and Dundee 1965, p. 
370; Dundee 1971, p. 101.1; Routman 1993, pp. 410-415; Kucuktas et al. 
2001, p. 127), we will continue to use C. a. bishopi, which is the name 
currently recognized by the Committee on Standard English and 
Scientific Names (Crother et al. 2008, p. 15). Although discussion 
continues over the taxonomic status of the Ozark hellbender, the 
designation of the Ozark hellbender as a species or subspecies does not 
affect its qualification for listing under the Act (16 U.S.C. 1531 et 
seq.). Careful review of the Ozark hellbender's taxonomic information 
confirms it is a valid subspecies.
Habitat and Life History
    Eastern and Ozark hellbenders are similar in habitat selection, 
movement, and reproductive biology (Nickerson and Mays 1973a, pp. 44-
55). Published works on the eastern hellbender provide insights into 
Ozark hellbender ecology. Adult Ozark hellbenders are frequently found 
beneath large rocks in moderate to deep (less than 3 feet (ft) to 9.8 
ft (less than 1 meter (m) to 3 m)), rocky, fast-flowing streams in the 
Ozark plateau (Johnson 2000, p. 42; Fobes and Wilkinson 1995, pp. 5-7). 
In spring-fed streams, Ozark hellbenders will often concentrate 
downstream of the spring, where there is little water temperature 
change throughout the year (Dundee and Dundee 1965, p. 370). Adults are 
nocturnal, remaining beneath cover during the day and emerging to 
forage at night, primarily on crayfish. They are diurnal during the 
breeding season (Nickerson and Mays 1973a, pp. 40-41; Noeske and 
Nickerson 1979, p. 92 and p. 94). Ozark hellbenders are territorial and 
will defend occupied cover from other hellbenders (Nickerson and Mays 
1973a, pp. 42-43). This species migrates little throughout its life. 
For example, one tagging study revealed that 70 percent of marked 
individuals moved less than 100 ft (30 m) from the site of original 
capture (Nickerson and Mays 1973b, p. 1165). Home ranges average 91.9 
square (sq) ft (28 sq m) for females and 265.7 sq ft (81 sq m) for 
males (Peterson and Wilkinson 1996, p. 126).
    Hellbenders are habitat specialists that depend on consistent 
levels of dissolved oxygen, temperature, and flow (Williams et al. 
1981, p. 97). The lower dissolved-oxygen levels found in warm or 
standing water do not provide for the hellbender's respiratory needs. 
In fact, hellbenders have been observed rocking or swaying in still, 
warm water (Williams et al. 1981, p. 97) to increase their exposure to 
oxygen. Hutchison and Hill (1976, p. 327) found that the hellbender 
exhibits a preferred mean water temperature of 11.6 [deg]C (52.9 
[deg]F), 17.7 [deg]C (63.9 [deg]F), and 21.7 [deg]C (71.1 [deg]F) for 
individuals acclimatized to temperatures of 5 [deg]C (41 [deg]F), 15 
[deg]C (59 [deg]F), and 25 [deg]C (77 [deg]F), respectively. Hutchison 
et al. (1973, p. 807) found the mean critical thermal maxima (the 
temperature at which animals lose their organized locomotory ability 
and are unable to escape from conditions that would promptly lead to 
their death) of Ozark hellbenders was 32.7 [deg]C (90.9 [deg]F) at 5 
[deg]C (41 [deg]F) acclimation, 32.9 [deg]C (91.2 [deg]F) at 15 [deg]C 
(59 [deg]F), and 36.5 [deg]C (97.7 [deg]F) at 25 [deg]C (77[deg] F).
    Typically, Ozark hellbender populations are dominated by older, 
large adults (Nickerson and Mays 1973a, p. 1; Peterson et al. 1983, pp. 
227-231; LaClaire 1993, p. 2). Hellbenders are long-lived, capable of 
living 25 to 30 years in the wild (Peterson et al. 1983, p. 228). 
Hellbenders may live up to 29 years in captivity (Nigrelli 1954, p. 
297).
    Individuals mature sexually at 5 to 8 years of age (Bishop 1941, 
pp. 49-50; Dundee and Dundee 1965, p. 370), and males normally mature 
at a smaller size and younger age than females. Female hellbenders are 
reported to be sexually mature at a total length of 14.6 to 15.4 in (37 
to 39 cm), or approximately 6 to 8 years (Nickerson and Mayes 1973a, p. 
54; Peterson et al. 1983, p. 229; Taber et al. 1975, p. 638). Male 
hellbenders have been reported to reach sexual maturity at a total 
length of 11.8 in (30 cm), or approximately 5 years (Taber et al. 1975, 
p. 638).
    Breeding generally occurs between mid-September and early October 
(Johnson 2000, p. 42). Males prepare nests beneath large flat rocks or 
submerged logs. Ozark hellbenders mate via external fertilization, and 
males will guard the fertilized eggs from predation by other 
hellbenders (Nickerson and Mays 1973a, p. 42 and p. 48). Clutch sizes 
vary from 138 to 450 eggs per nest (Dundee and Dundee 1965, p. 369), 
and eggs hatch after approximately 80 days (Bishop 1941, p. 47). 
Hatchlings and larvae are rarely collected during surveys due to low 
detectability. Larvae and small individuals hide beneath small stones 
in gravel beds (Nickerson and Mays 1973a, p. 12; LaClaire 1993, p. 2). 
Although there is little information on the diet of larval hellbenders, 
it is generally believed that aquatic insects comprise their primary 
food source. In one of the few studies on larval diet, Pitt and 
Nickerson (2006, p. 69) found that the stomach of a larval Eastern 
hellbender from the Little River in Tennessee exclusively contained 
aquatic insects.
    During or shortly after eggs are laid, males and females may prey 
upon their own and other individuals' clutches. Most hellbenders 
examined during the breeding season contain between 15 and 25 eggs in 
their stomachs (Smith 1907, p. 26). Males frequently regurgitate eggs 
(King 1939, Pfingsten 1990 p. 548; Pfingsten 1990, p. 49), and females 
sometimes eat their own eggs while ovipositing (laying) them (Nickerson 
and Mays 1973a, p. 46). Topping and Ingersol (1981, p. 875) found that 
up to 24 percent of the gravid (egg-bearing)

[[Page 54563]]

females examined from the Niangua River in Missouri retained their eggs 
and eventually reabsorbed them.
Range
    Ozark hellbenders are endemic to the White River drainage in 
northern Arkansas and southern Missouri (Johnson 2000, pp. 40-41), 
historically occurring in portions of the Spring, White, Black, Eleven 
Point, and Current Rivers and their tributaries (North Fork White 
River, Bryant Creek, and Jacks Fork) (LaClaire 1993, p. 3). Currently, 
hellbenders are considered extirpated in the mainstem White, Black, and 
Spring Rivers and Jacks Fork, and their range has been considerably 
reduced in the remaining rivers and tributaries.
    The other subspecies of hellbender, the eastern hellbender, occurs 
in central and eastern Missouri (in portions of the Missouri drainage 
in south-central Missouri and the Meramec (Mississippi drainage), but 
its range does not overlap with that of the Ozark hellbender. The 
eastern hellbender's range extends eastward to New York, Georgia, and 
the States in between.
Population Estimates and Status
    Evidence indicates Ozark hellbenders are declining throughout their 
range (Wheeler et al. 2003, pp. 153 and 155), and no populations appear 
to be stable. Declines have been evident throughout the range of the 
eastern hellbender as well, which receives protective status in many 
eastern States.
    At the request of the Saint Louis Zoo's Wildcare Institute, the 
Conservation Breeding Specialist Group (CBSG) facilitated a Population 
and Habitat Viability Analysis (PHVA) for the Ozark and eastern 
hellbender in August 2006. Thirty workshop participants explored 
threats to hellbender populations and develop management actions aimed 
at understanding and halting their decline. Using the software program 
Vortex (v9.61), the CBSG team prepared and presented a baseline model 
for hellbender populations and worked through the input parameters with 
the participants to optimize the model and determine current and 
projected mean population sizes for all current populations in 75 years 
(Briggler et al. 2007, p. 8 and pp. 80-86). The results of the model 
are presented in the river-specific population accounts below.
    A description of what we know about Ozark hellbender populations 
follows (including current population estimates from the hellbender 
PHVA (Briggler et al. 2007, pp. 83-84)).
    White River - There are only two hellbender records from the main 
stem of the White River. In 1997, a hellbender was recorded in Baxter 
County, Arkansas (Irwin 2008, pers. comm.). No hellbenders were found 
during a 2001 survey of the lower portion of the White River, but in 
2003, an angler caught a specimen in Independence County, Arkansas 
(Irwin 2008, pers. comm.). We do not know whether a viable population 
exists (or whether hellbenders are able to exist) in the main stem of 
the White River or if the individuals captured are members of a relic 
population that was separated from the North Fork White River 
population by Norfork Reservoir. Much of the potential hellbender 
habitat (we do not know whether this habitat was historically occupied) 
was destroyed by the series of dams constructed in the 1940s and 1950s 
on the upper White River, including Beaver, Table Rock, Bull Shoals, 
and Norfork Reservoirs.
    North Fork White River - The North Fork White River (North Fork) 
historically contained a considerable hellbender population. In 1973, 
results of a mark-recapture study indicated approximately 1,150 
hellbenders within a 1.7-mile (mi) (2.7-kilometer (km)) reach of the 
North Fork in Ozark County, Missouri, with a density of one individual 
per 26.2 to 32.8 sq ft (8 to 10 sq m; Nickerson and Mays 1973b, p. 
1165). Ten years later, hellbender density in a 2.9-mi (4.6-km) section 
of the North Fork in the same county remained high, with densities 
between one per 19.7 sq ft (6 sq m) and one per 52.5 sq ft (16 sq m; 
Peterson et al. 1983, p. 230). Individuals caught in this study also 
represented a range of lengths from 6.8 to 21.7 in (172 to 551 
millimeters (mm)), indicating that reproduction was occurring in this 
population, and most individuals were sized between 9.8 and 17.7 in 
(250 and 449 mm). In a 1992 qualitative study in Ozark County, 
Missouri, 122 hellbenders were caught during 49 person-hours of 
searching the North Fork (Ziehmer and Johnson 1992, p. 2). Those 
individuals ranged in length from 10 to 18 in (254 to 457 mm), and no 
average size was included in that publication.
    Until the 1992 study, the North Fork population appeared to be 
relatively healthy. However, in a 1998 study of the same reach of river 
censused in 1983 (Peterson et al. 1983, pp. 225-231) and using the same 
collection methods, only 50 hellbenders were captured (Wheeler et al. 
1999, p. 18). These individuals ranged in length from 7.9 to 20.0 in 
(200 to 507 mm), with most between 15.7 and 19.7 in (400 and 500 mm), 
and were on average significantly longer than those collected 20 years 
earlier (Wheeler 1999, p. 15). This shift in length distribution was 
not a result of an increase in maximum length of individuals; instead, 
there were fewer individuals collected in the smaller size classes. To 
compare results between these qualitative and quantitative studies, 
Wheeler et al. (1999, p. 4) converted historical hellbender collections 
(Peterson et al. 1983, pp. 225-231) to numbers of individuals caught 
per day. In addition, the other studies that were not included in that 
conversion (Peterson et al. 1988, pp. 291-303; Ziehmer and Johnson 
1992, pp. 1-5) have been converted here. For comparison purposes, one 
search day is defined as 8 hours of searching by 3 people (24 person-
hours). The use of ``search day'' may be an underestimate of actual 
effort, and this conservative estimate of effort will likely result in 
a modest estimate of hellbender population declines. Therefore, in 
1983, approximately 51 hellbenders were caught per search day (Peterson 
et al. 1983, pp. 225-231). In 1992, 60 hellbenders per day were caught 
(Ziehmer and Johnson 1992, p. 2), and, in 1998, 16 hellbenders per day 
were caught (Wheeler 1999, p. 12).
    The North Fork had been considered the stronghold of the species in 
Missouri, and the populations inhabiting this river had been deemed 
stable (Ziehmer and Johnson 1992, p. 3; LaClaire 1993, pp. 3-4). 
However, these populations now appear to be experiencing declines 
similar to those in other streams. The collection of young individuals 
has become rare, indicating little recruitment. Although Briggler 
(2008a, pers. comm.) did find some younger hellbenders in this river 
during his 2005 surveys, he has not found any larvae despite extensive 
effort. In species such as the hellbender, which are long lived and 
mature at a relatively late age, detecting declines related to 
recruitment can take many years, as recruitment under healthy 
population conditions is typically low (Nickerson and Mays 1973a, p. 
54). In 2006, hellbender experts (researchers and State herpetologists) 
estimated the current population in the North Fork to be 200 
individuals (Briggler et al. 2007, p. 83). In surveys conducted between 
1969 and 1979, researchers caught from 8 to 12 hellbenders per hour 
(Nickerson and Briggler 2007, p. 213). For comparison, surveys of the 
same 15.5-mi (25-km) section of the North Fork in 2005 and 2006 
averaged 0.5 hellbenders per hour (Nickerson and Briggler 2007, p. 
213). Therefore, a dramatic decline is apparent in the North Fork.
    Bryant Creek- Bryant Creek is a tributary of the North Fork in 
Ozark County, Missouri, which flows into Norfork Reservoir. Ziehmer and 
Johnson

[[Page 54564]]

(1992, p. 2) expected to find hellbenders in this stream during an 
initial survey, but none were captured or observed after 22 person-
hours. This apparent lack of the species conflicted with reports from 
Missouri Department of Conservation (MDC) personnel and an angler who 
reported observations of fairly high numbers of hellbenders in Bryant 
Creek during the winter months (Ziehmer and Johnson 1992, p. 3). A 
subsequent survey of the creek resulted in the capture of six 
hellbenders (Wheeler et al. 1999, p. 7), confirming the existence of a 
population in this tributary. This population, however, is isolated 
from the other North Fork White River populations by Norfork Reservoir, 
which could contribute to this population's apparent small size. During 
MDC surveys conducted in 2007, no individuals were found in areas where 
the six individuals were found in 1998. However, five individuals were 
found in areas of Bryant Creek not surveyed in 1998. This population 
has been historically low and is not considered viable (Briggler 2008b, 
pers. comm.).
    Black River - There is one documented record of a hellbender in the 
Black River above its confluence with the Strawberry River on the 
Independence-Jackson County line (Arkansas) in 1978 (Irwin 2008, pers. 
comm.). Portions of the Black River in Missouri were surveyed in 1999 
by researchers at Arkansas State University, but no hellbenders were 
observed (Wheeler et al. 1999, p. 18). Currently, the Black River does 
not appear to have conditions suitable for hellbenders, although it may 
have been occupied before intensive agricultural practices were begun 
in the area (Irwin 2008, pers. comm.). The Black River is presumed to 
be part of the historical range of the subspecies, because hellbenders 
have been documented in several of its tributaries, including the 
Spring, Current, and Eleven Point Rivers (Firschein 1951, p. 456; 
Trauth et al. 1992, p. 83). In 2004, MDC surveyed areas in Missouri 
that had been searched in 1999 (Wheeler et al. 1999, p. 18), as well as 
areas not searched in 1999 that had anecdotal reports of hellbenders. 
No hellbenders were found during this 2-day survey. The habitat was 
considered less than ideal because it was predominantly composed of 
igneous rocks, which lack the cracks and crevices necessary for 
hellbender inhabitance. Parts of the Black River, with suitable 
dolomite rock, might have contained a small population at one time 
(Briggler 2008b, pers. comm.).
    Spring River - The Spring River, a tributary of the Black River, 
flows from Oregon County, Missouri, south into Arkansas. Hellbender 
populations have been found in the Spring River near Mammoth Spring in 
Fulton County, Arkansas (LaClaire 1993, p. 3). In the early 1980s, 370 
individuals were captured during a mark-recapture study along 4.4 mi (7 
km) of stream south of Mammoth Spring (Peterson et al. 1988, p. 293). 
Hellbender density at each of the two surveyed sites was fairly high 
(approximately one per 75.5 square (sq) ft (23 sq m) and one per 364 sq 
ft (111 sq m)). These individuals were considerably larger than 
hellbenders captured from other streams during the same time period, 
with 74 percent of Spring River hellbenders having a total length of 
more than 17.7 in (450 mm), with a maximum length of 23.6 in (600 mm) 
(Peterson et al. 1988, p. 294). This may indicate that Spring River 
populations are genetically distinct from other hellbender populations. 
This speculation was upheld by the conclusions of a genetic study of 
the Spring, Current, and Eleven Point River populations (Kucuktas et 
al. 2001, pp. 131-135). In 1991, surveyors searched 10 sites for 
hellbenders along a 16.2-mi (26-km) stream reach but observed only 20 
individuals during 41 search-hours over a 6-month period (Trauth et al. 
1992, p. 83). This 6-month survey included the two sites surveyed in 
the early to mid-1980s in which surveyors captured 370 hellbenders, 
along with eight additional sites upstream and downstream (Peterson et 
al. 1988, pp. 291-303; Trauth et al. 1992, p. 83). No size class 
information is available, although the large sizes of captures reported 
in Peterson et al. (1988, p. 294) may be indicative of a population 
experiencing little recruitment.
    Researchers with Arkansas State University surveyed the Spring 
River from autumn 2003 through spring 2004, performing 50 hours of 
search effort and finding only four Ozark hellbenders. These animals 
were removed from the river and were housed at the Mammoth Spring 
National Fish Hatchery but have since died, most likely due to water 
quality issues at the hatchery. Arkansas State University researchers 
found four and one individual during 2005 and 2006 surveys, 
respectively. Hellbenders have declined in this stream and have likely 
succumbed to the threats of water quality degradation, aquatic 
vegetation encroachment, and illegal commercial and scientific 
collection (Irwin 2008, pers. comm.). Although experts estimated the 
population in the Spring River to be at most 10 individuals, the 
population in this river is considered extirpated and the possibility 
of this stream being re-inhabited under present conditions is minimal 
because of the magnitude of habitat degradation (Briggler et al. 2007, 
p. 83; Irwin 2008, pers. comm.).
    Eleven Point River - The Eleven Point River, a tributary of the 
Black River that occurs in Missouri and Arkansas, has been surveyed 
several times since the 1970s. Wheeler (1999, p. 10) analyzed 
historical data. In 1978, 87 hellbenders were captured in Oregon 
County, Missouri, over a 3-day period, yielding an average of 29 
hellbenders per day. From 1980 to 1982, 314 hellbenders were captured 
in the same area in 9 collection days, yielding an average of 35 
hellbenders per day; hellbender body lengths over that period ranged 
from 4.7 to 17.8 in (119 to 451 mm). In 1988, Peterson et al. (1988, p. 
293) captured 211 hellbenders from the Eleven Point River and estimated 
hellbender density to be approximately one per 65.6 sq ft (20 sq m). 
Total lengths of these individuals ranged from 4.7 to 17.7 in (120 to 
450 mm), with most between 9.8 and 13.8 in (250 and 350 mm). Although 
the data were not analyzed for captures per day, it can be estimated 
that approximately 40 hellbenders were caught per day during this 
study.
    In 1998, Wheeler (1999, p. 10) captured 36 hellbenders over 4 days 
from the same localities as Peterson et al. (1988, p. 292), for an 
average of nine hellbenders per day. These hellbenders were larger than 
those captured previously, with total lengths of 12.8 to 18.0 in (324 
to 457 mm), and there were considerably fewer individuals in the 
smaller size classes. For comparison, a survey of Peterson et al. 
(1988, p. 293) localities in 2005 resulted in a total of 31 hellbenders 
captured, yielding an average of 2.6 hellbenders captured per day 
(using the search day conversion method presented in the North Fork 
White River discussion). Population declines and reduced recruitment in 
the Eleven Point River in Missouri are indicated (through past survey 
data), although hellbenders are consistently reported during surveys in 
the Eleven Point River in Arkansas (Irwin 2008, pers. comm.).
    Recently in Arkansas (2005 and 2007), however, no more than two or 
three individuals were caught per day. Specifically, the catch per 
person-hour in 2005 was 1.1 hellbenders and in 2007 was 0.9 hellbenders 
for surveys conducted on the Eleven Point River in Arkansas (Irwin 
2008, pers. comm.). Portions of the Eleven Point River watershed in 
Missouri are owned by the Federal Government and managed to protect 
stream and riparian areas from erosion. However, the watershed in

[[Page 54565]]

Arkansas is all privately owned with increased threat from stream bank 
clearing and unrestricted cattle access, which have an increased effect 
(through increased siltation and water quality degradation) on 
remaining populations (Irwin 2008, pers. comm.). In 2006, hellbender 
experts (researchers and State herpetologists) estimated the current 
Eleven Point River population to be 200 individuals in Arkansas and 100 
individuals in Missouri (Briggler et al. 2007, p. 83).
    Current River - The Current River had not been surveyed extensively 
until the 1990s. Nickerson and Mays (1973a, p. 63) reported a large 
hellbender population in this stream, but no numbers were presented. In 
1992, Ziehmer and Johnson (1992, p. 2) found 12 hellbenders in 60 
person-hours in Shannon County, Missouri, or approximately 5 
hellbenders per day using the same search day conversion as presently 
used. These individuals ranged in length from 4.5 in (115 mm) to more 
than 15.0 in (380 mm; maximum length was not reported), with most 
between 13.0 and 15.0 in (330 and 380 mm). In 1999, 14 hellbenders were 
collected over 3 collection days (approximately 5 hellbenders per day), 
also in Shannon County, Missouri, and the individuals ranged from 14.8 
to 20.3 in (375 to 515 mm), with most between 17.7 to 19.7 in (450 to 
499 mm; Wheeler 1999, p. 12). The average size of individuals increased 
by nearly 4 in (100 mm), indicating this population must have a lack of 
recruitment. In 2005 and 2006, researchers found a total of 22 
hellbenders throughout the Current River in a total of 100 hours spent 
searching (equivalent to 1.8 hellbenders per day). In 2006, hellbender 
experts estimated the current population in the Current River to be 80 
individuals (Briggler et al. 2007, p. 83).
    Jacks Fork - Jacks Fork, a tributary of the Current River, was 
surveyed for hellbenders for the first time in 1992 (Ziehmer and 
Johnson 1992, p. 2). Four hellbenders were collected over 66 person-
hours, equating to roughly 2 hellbenders per day. The individuals were 
large, ranging from 13.0 to 16.9 in (330 to 430 mm). No hellbenders 
were found during investigations of Jacks Fork in 2003 and 2006.
Previous Federal Action
    We first identified the Ozark hellbender as a candidate species in 
a notice of review published in the Federal Register on October 30, 
2001 (66 FR 54808). The Ozark hellbender was given a listing priority 
number of 6 due to non-imminent threats of a high magnitude.
    On May 11, 2004, we received a petition dated May 4, 2004, from The 
Center for Biological Diversity to list 225 candidate species, 
including the Ozark hellbender. We received another petition on 
September 1, 2004 (dated August 24, 2004), from Missouri Coalition for 
the Environment and Webster Groves Nature Study Society requesting 
emergency listing of the Ozark hellbender. Based on information 
presented in that petition, we determined that emergency listing was 
not warranted at the time. We notified the petitioners by letter of 
this determination in November 2004. Our finding on that petition was 
included in a May 11, 2005, notice of review published in the Federal 
Register (70 FR 24870).
    In the May 11, 2005, notice of review we changed the listing 
priority number (LPN) for the Ozark hellbender from 6 to 3, the highest 
priority category for a subspecies, because of the increased immediacy 
of threats since the Ozark hellbender was elevated to candidate status 
in 2001. The threat of particular concern was the annual increases in 
recreational pressures on Ozark hellbender rivers. Because collection 
for trade is considered a primary threat, we coordinated with our 
Division of Management Authority to develop, concurrent with this 
proposal, a proposal to list the hellbender (both subspecies) in 
Appendix III of the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES). Elsewhere in today's Federal 
Register, the Service proposes to list the hellbender, including both 
subspecies, in Appendix III of CITES.
Summary of Factors Affecting the Species
    Section 4 of the Endangered Species Act and regulations (50 CFR 
part 424) promulgated to implement the listing provisions of the Act 
set forth the procedures for adding species to the Federal lists. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1) as 
follows: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    In the context of the Act, the term ``threatened species'' means 
any species or subspecies or, for vertebrates, Distinct Population 
Segment (DPS) that is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. The term ``endangered species'' means any species, subspecies, 
or for vertebrates, DPS, that is in danger of extinction throughout all 
or a significant portion of its range. The Act does not define the term 
``foreseeable future.''
    The application of the five factors to the Ozark hellbender 
(Cryptobranchus alleganiensis bishopi) is as follows:

A. The present or threatened destruction, modification, or curtailment 
of its habitat or range.

    One of the most likely causes of the decline of the Ozark 
hellbender in the White River system in Missouri and Arkansas is 
habitat degradation resulting from impoundments, ore and gravel mining, 
sedimentation, nutrient runoff, and nest site disturbance from 
recreational uses of the rivers (Williams et al. 1981, p. 99; LaClaire 
1993, pp. 4-5). Hellbenders are habitat specialists that depend on 
consistent levels of dissolved oxygen, temperature, and flow (Williams 
et al. 1981, p. 97). Therefore, even minor alterations to stream 
habitat are thought to be detrimental to hellbender populations.
Impoundments
    Impoundments impact stream habitat in many ways. When a dam is 
built on a free-flowing stream, riffle and run habitats are converted 
to lentic (still), deep water habitat. As a result, surface water 
temperatures tend to increase, and dissolved oxygen levels tend to 
decrease (Allan and Castillo 2007, pp. 323-324 and pp. 97-98). 
Hellbenders depend upon highly vascularized lateral skin folds for 
respiration. Therefore, lakes and reservoirs are unsuitable habitat for 
Ozark hellbenders, because these areas have lower oxygen levels and 
higher water temperatures (Williams et al. 1981, p. 97; LaClaire 1993, 
p. 5) than do fast-flowing, cool-water stream habitats. Impoundments 
also fragment hellbender habitat, blocking the flow of immigration and 
emigration between populations (Dodd 1997, p. 178). The resulting 
small, isolated populations are more susceptible to environmental 
perturbation and demographic stochasticity, both of which can lead to 
local extinction (Wyman 1990, p. 351).
    In the upper White River, construction of Beaver, Table Rock, Bull 
Shoals, and Norfork dams in the 1940s and 1950s destroyed the potential 
hellbender habitat upstream of Batesville, Arkansas, and effectively 
isolated hellbender populations. Norfork Dam was constructed on the 
North Fork in 1944 and has isolated

[[Page 54566]]

Ozark hellbender populations in Bryant Creek and the White River from 
populations in the North Fork. Populations downstream of Beaver, Table 
Rock, Bull Shoals, and Norfork dams were likely extirpated due to 
hypolimnetic releases from the reservoir. Hypolimnetic releases are 
cooler than normal stream temperatures because they are from a layer of 
water that is below the thermocline, and the water from this layer is 
typically reduced of oxygen because it is noncirculating or does not 
``turn over'' to the surface. Additionally, the tailwater zones below 
dams experience extreme water level fluctuations and scouring for many 
miles downstream. This impacts hellbender populations by washing out 
the pebbles and cobbles used as cover by juveniles and creating 
unpredictable habitat conditions outside the Ozark hellbender's normal 
range of tolerance.
Mining
    Gravel mining, which has occurred in a number of streams within the 
historical range of the Ozark hellbender, has directly contributed to 
Ozark hellbender habitat alteration and loss. Dredging results in 
stream instability both up and downstream of the dredged portion (Box 
and Mossa 1999, pp. 103-104). Head cutting, in which the increase in 
transport capacity of a dredged stream causes severe erosion and 
degradation upstream, results in extensive bank erosion and increased 
turbidity levels (Allan and Castillo 2007, p. 331). Reaches downstream 
of the dredged stream reach often experience aggradation (raised stream 
bed from build-up of sediment) as the sediment transport capacity of 
the stream is reduced (Box and Mossa 1999, p. 104). Gravel mining 
physically disturbs hellbender habitat in dredged areas, and associated 
silt plumes can impact various aspects of the hellbender's life 
requisites (nesting habitat, eggs, prey). In addition, these effects 
reduce crayfish populations, which are the primary prey species for 
Ozark hellbenders. Gravel dredging is widespread in the White River 
systems in southern Missouri and northern Arkansas (LaClaire 1993, p. 
4).
    Portions of the Ozark plateau have a history of being major 
producers of lead and zinc, and some mining activity still occurs in 
the southeastern Ozarks, though at less than historical levels. Results 
of a U.S. Geological Survey (USGS) water quality study conducted from 
1992 to 1995 in the Ozark plateau (Peterson et al. 1998, pp. 12-13) 
revealed that concentrations of lead and zinc in bed sediment and fish 
tissue were substantially higher at sites with historical or active 
mining activity. These concentrations were high enough to suggest 
adverse biological effects, such as reduced enzyme activity or death of 
aquatic organisms. Because hellbenders have highly permeable skin and 
obtain most of their oxygen through subcutaneous respiration, they are 
particularly susceptible to absorbing contaminants such as lead and 
zinc. Furthermore, because Ozark hellbenders are long lived, they may 
be at higher risk of bioaccumulation of harmful chemicals (Peterson et 
al. 1998, pp. 12-13). Although mining for lead and zinc no longer 
occurs within the range of the Ozark hellbender, Petersen et al. showed 
elevated concentrations were still present in the streams where mining 
occurred historically (1998, p. 12). Although it is possible for these 
metals to be transported and diluted, they will not degrade over time; 
therefore, it is likely that lead and zinc concentrations found over 10 
years ago in these rivers would remain similar today (Mosby 2008, pers. 
comm.). In addition, there are historical lead and zinc mining sites 
that are near Ozark hellbender populations on the North Fork in Ozark 
County (Mosby 2008, pers. comm.).
    Increased lead and zinc contamination input to the Current River by 
way of the active Sweetwater Mine on Adair Creek in Reynolds County, 
Missouri, is a potential future risk. Adair Creek is a tributary of 
Logan Creek, a losing stream (loses water as it flows downhill) 
connected to Blue Spring, which discharges to the Current River. 
Although lead and zinc contaminants have been found in Logan Creek, 
there is no evidence that contaminants from Sweetwater mine have made 
it to Blue Spring. However, if the current tailings dam on Adair Creek 
fails, which could be ``a real possibility,'' large concentrations of 
lead and zinc would be added to Blue Spring and the Current River 
(Mosby 2008, pers. comm.).
Water Quality
    Despite the claim by some that many Ozark streams outwardly appear 
pristine, Harvey (1980, pp. 53-60) clearly demonstrated that various 
sources of pollution exist in the ground water in the Springfield-Salem 
Plateaus of southern Missouri. In comparing ground-water quality of 
sites within the Ozark Plateaus (including Arkansas and Missouri) with 
other National Water-Quality Assessment Program (NAWQA) sites, Petersen 
et al. (1998, pp. 9-10) documented that nitrate concentrations in parts 
of the Springfield Plateau aquifer were higher than in most other NAWQA 
drinking-water aquifers, and could possibly affect hellbenders by 
inhibiting their growth, impairing their immune systems, and overall 
causing increased stress. Those study areas were within the current 
distribution of Ozark hellbenders in Arkansas and Missouri.
    Nitrogen and phosphorus are essential plant nutrients found 
naturally in streams. Elevated concentrations of these nutrients, 
however, cause increased growth of algae and aquatic plants in many 
streams and are detrimental to aquatic biota (Petersen et al. 1998, p. 
6). In the Ozark plateau, water is contaminated by nutrients from 
increased human waste (in part due to rapid urbanization and increased 
numbers of septic systems), fertilizers (including land application of 
chicken litter (poultry manure, bedding material, and wasted feed)), 
logging, and expanded industrial agricultural practices such as 
concentrated animal feeding operations. A continuing source of 
sedimentation and contamination is agriculture, which comprises a large 
percentage of the land use within the range of the Ozark hellbender 
(Wheeler et al. 2003, p. 155). Missouri is the second largest beef 
cattle-producing State in the nation, with the majority of animal units 
produced in the Ozarks. Both Arkansas and Missouri are leading States 
in poultry production. The NAWQA data collected in the Ozarks in 1993-
1995 from wells and springs indicated that nitrate concentrations were 
strongly associated with the percentage of agricultural land near the 
wells or springs. Livestock wading in streams, poor agricultural 
practices that degrade vegetated riparian areas, and faulty septic and 
sewage treatment systems have resulted in elevated nitrate levels 
(Petersen et al. 1998, pp. 6-8 and 15).
    Increased recreational use (such as from canoeing, kayaking, 
rafting, inner tube floating, and small horsepower motorboating) also 
impacts the water and habitat quality in rivers inhabited by the Ozark 
hellbender. In 2003, the Missouri Department of Natural Resources added 
an 8-mi (13-km) stretch of the Jacks Fork River to the U.S. 
Environmental Protection Agency Consolidated 2002 Missouri (303(d)) 
list of impaired waters for organic wastes (fecal coliform). Likely 
sources of the contamination include runoff from a commercial horse 
trail ride outfitter, horse stream crossings, and effluent from 
campground pit-toilets (Davis and Richards 2002, pp. 1, 3, and 36).
    The 303(d) list included additional rivers inhabited by Ozark 
hellbenders. A 21-mi (34-km) stretch of the Eleven Point River was 
listed as impaired due

[[Page 54567]]

to unacceptable levels of chlorine and atmospheric deposition of 
mercury. Increased mercury levels have been implicated as a potential 
cause in the decline of other aquatic amphibians, such as the northern 
dusky salamander (Desmognathus fuscus fuscus; Bank et al. 2006, pp. 
234-236). Water quality monitoring on both the North Fork White and 
Eleven Point Rivers in Missouri detected 21 chemicals and elevated 
levels of estrogen in male hellbenders collected during 2002 and 2003, 
respectively (Huang 2004, pers. comm.). The Spring River has also 
suffered from many water quality perturbations over recent decades. In 
the late 1980s, the West Plains (Missouri) wastewater treatment plant 
failed, depositing all stored waste into the Spring River. In addition, 
the majority of the Ozarks region in Missouri and Arkansas is composed 
of karst topography (caves, springs, sinkholes, and losing streams), 
which further complicates transport of potential contaminants.
Siltation
    Sediment inputs from land use activities have, and continue to, 
significantly contribute to habitat degradation. Nickerson and Mays 
(1973a, pp. 55-56) cite a personal communication from S. Minton in 
which sediment accumulation is suspected of destroying eggs and 
juvenile hellbenders. Hellbenders are intolerant of sedimentation and 
turbidity (Nickerson and Mays 1973a, pp. 55-56), which can impact them 
in several ways:
    (1) Sediment deposition of cover rocks reduces or removes suitable 
habitat for adults and can cover and suffocate eggs.
    (2) Sediment fills interstitial spaces in pebble or cobble beds, 
reducing suitable habitat for larvae and subadults (FISRWG 1998, 
chapter 3, p. 19 and p. 25).
    (3) Suspended sediment loads can cause water temperatures to 
increase, as there are more particles to absorb heat, thereby reducing 
dissolved oxygen levels (Allan and Castillo 2007, pp. 323-324).
    (4) Sedimentation can impede the movement of individuals and 
colonization of new habitat (Routman 1993, p. 412).
    (5) The Ozark hellbender's highly permeable skin causes them to be 
negatively affected by sedimentation. Various chemicals, such as 
pesticides, bind to silt particles and become suspended in the water 
column when flushed into a stream. The hellbender's permeable skin 
provides little barrier to these chemicals, which can be toxic (Wheeler 
et al. 1999, pp. 1-2).
    (6) Sedimentation may result in a decline of prey abundance by 
embedding cover rocks.
    Timber harvest and associated activities (construction and 
increased use of unpaved roads, skid trails, and fire breaks) are 
prominent in many areas within the range of the Ozark hellbender and 
increase terrestrial erosion and sedimentation into streams. Peak 
stream flows often rise in watersheds with timber harvesting 
activities, due in part to compacted soils resulting from construction 
of roads and landings (where products are sorted and loaded for 
transportation) and vegetation removal (Allan and Castillo 2007, p. 
332; Box and Mossa 1999, pp. 102-103). The cumulative effects of timber 
harvest on sedimentation rates may last for a couple of decades, even 
after harvest practices have ceased in the area (Frissell 1997, pp. 
102-104).
    Improperly designed and maintained roads cause marginally stable 
slopes to fail, and they also capture surface runoff and channel it 
directly into streams (Allan and Castillo 2007, pp. 321-322 and 340). 
Erosion from roads contributes more sediment than the land harvested 
for timber (Box and Mossa 1999, p. 102).
    Unrestricted cattle access to streams increases erosion and 
subsequent sediment loads (Clary and Kinney 2002, p. 145). This is 
particularly a concern for the Eleven Point River in Arkansas (Irwin 
2008, pers. comm.). Riparian pasture ``retirement'' or exclusion of 
grazing has proven to be an effective means of reducing surface runoff 
pollutant loads to waterways. Runoff levels of sediment, in addition to 
phosphorus, particulate- and nitrate-nitrogen concentrations, have been 
found to be lower at retired riparian pasture than at currently grazed 
riparian pasture sites (Hoorman and McCutcheon 2005, p. 9).
Disturbance
    Habitat disturbance affects hellbender survival in several rivers. 
Most rivers and streams inhabited by hellbenders are extremely popular 
with canoeists, kayakers, rafters, inner tube floaters, or low-
horsepower motorboat operators. In fact, canoe, kayak, and motor and 
jet boat traffic continues to increase on the Jacks Fork, Current, 
Eleven Point, and North Fork Rivers. On the North Fork River, an 
average of five canoes per weekday were observed in 1998, and in 2004, 
that figure increased to 21 canoes per weekday (Pitt 2005, pers. 
comm.). Due to the increasing popularity of these float streams, the 
National Park Service is evaluating options that will reduce the number 
of boats that can be launched daily by concessionaires (Poe 2004, pers. 
comm.). Hellbenders encountered with gashes in their heads suggest that 
watercraft traffic likely impact these animals. New roads, boat ramps, 
and other river access points have been constructed, which lead to 
increased river access and increased disturbance to hellbenders 
(Briggler et al. 2007, p. 64). Off-road vehicle (ORV) recreation is 
also widespread throughout the Ozarks region. ORVs frequently cross 
rivers inhabited by hellbenders and are driven in riverbeds where the 
water is shallow enough to enable this form of recreation. The force 
delivered by a boat or ORV hitting a rock could easily injure or kill a 
hellbender, in addition to destroying hellbender habitat. ORV activity 
also increases erosion and sedimentation by exposing bare erodible 
soils in areas with frequent activity.
    The practice of removing large rocks and boulders (by hand, 
machinery, or dynamite) to reduce damage to canoes is common on many 
hellbender streams (Nickerson and Mays 1973a, p. 56; Wheeler et al. 
1999, p. 4). Rocks are also removed by gardeners for landscaping. Rock 
turning and flipping is also done by crayfish hunters and hobbyists and 
independent researchers (Briggler et al. 2007, p. 61 and p. 66). The 
areas under these large rocks are important habitat for cover and nest 
sites; therefore, overturning or removing these rocks can diminish 
available cover and nest sites for hellbenders.
Best Management Practices (BMPs)
    Currently, a number of activities that can and do result in habitat 
degradation are outside of regulatory oversight. There are no 
regulatory requirements to implement BMPs to protect water quality from 
timber management actions. Existing BMPs by the Arkansas Forestry 
Commission and Missouri Department of Conservation lack mandatory 
requirements for implementing methods to reduce aquatic resource 
impacts associated with timber management. Timber harvest activities 
(for example, logging decks, increased use of unpaved roads, improperly 
designed and maintained roads, skid trails, fire breaks) result in 
erosion and sedimentation. Additionally, there are no laws or 
regulations that preclude livestock from grazing in riparian corridors 
and loafing in streams and rivers.

[[Page 54568]]

Summary of Habitat Destruction and Modification
    The threats to the Ozark hellbender from habitat destruction and 
modification are occurring throughout the entire range of the 
subspecies. These threats include impoundments, mining, water quality 
degradation, siltation, and disturbance from recreational activities.
    The effects of impoundments on Ozark hellbenders are significant 
because impoundments alter habitat directly, isolate populations, and 
change water temperatures and flows below reservoirs. Remaining Ozark 
hellbender populations are small and isolated, in part due to increased 
impoundments over time, making hellbenders vulnerable to individual 
catastrophic events and reducing the likelihood of recolonization after 
localized extirpations.
    Habitat destruction and modification from siltation and water 
quality degradation present a significant and immediate threat to the 
Ozark hellbender. We believe these are the primary causes of the 
population decline. Siltation and water quality degradation are caused 
by industrialization, agricultural runoff, mine waste, and activities 
related to timber harvesting. Increased siltation affects hellbenders 
in a variety of ways, such as suffocating eggs, eliminating suitable 
habitat for all life stages, reducing dissolved oxygen levels, 
increasing contaminants (that bind to sediments), and reducing prey 
populations. Increased nitrate levels and fecal coliform, along with a 
variety of other contaminants from agricultural runoff and increased 
urbanization, have been detected in hellbender streams, which not only 
pose a threat directly to hellbenders but also to Ozark aquatic 
ecosystems in general.
    Recreational pressure (for example, boat traffic, horseback riding, 
and ORV use) in streams inhabited by Ozark hellbenders has increased 
substantially on an annual basis, directly disturbing the habitat. Most 
hellbender rivers are popular with canoeists, kayakers, rafters, inner 
tube floaters, and motorboat operators. Removing large rocks and 
boulders to reduce damage to canoes is a common practice. Gardeners 
remove rocks for use in landscaping. Crayfish hunters, hobbyists, and 
independent researchers turn and flip rocks. This disturbance is 
significant because areas under large rocks are important habitat for 
cover and nest sites; therefore, overturning and removing these rocks 
reduces available cover and nest sites for hellbenders. The threats of 
rock removal and overturning are expected to continue or even increase 
as these recreational activities grow in popularity.

B. Overutilization for commercial, recreational, scientific, or 
educational purposes.

    Anecdotal reports indicate that Ozark hellbenders have been 
collected for commercial and scientific purposes (Trauth et al. 1992, 
p. 85). Although commercial collections are currently illegal in both 
Missouri and Arkansas, information provided by Nickerson and Briggler 
(2007, pp. 207-212) indicates that Ozark hellbenders are sold for the 
pet trade. Because of their protected status in Missouri and Arkansas, 
any actions involving interstate or foreign commerce of Ozark 
hellbenders collected from these states would be prohibited by the 
Federal Lacey Act (16 U.S.C. 3371-3378).
    In Arkansas, hellbenders may be collected with a scientific 
collecting permit from the AGFC; however, no permits are being issued 
currently or are anticipated to be issued in the future because the 
State acknowledges the severely imperiled status of the subspecies 
(Irwin 2008, pers. comm.). Missouri imposed a moratorium on hellbender 
collecting from 1991 to 1996 and has since issued only limited numbers 
of scientific collecting permits (Horner 2008, pers. comm.). Despite 
these restrictions, illegal collecting for the pet trade has been 
documented (Nickerson and Briggler 2007, pp. 208-209) and remains a 
threat throughout the range Briggler (2008b, pers. comm.).
    The illegal and legal collection of hellbenders for research 
purposes, museum collections, zoological exhibits, and the pet trade 
has undoubtedly been a contributing factor to hellbender declines. 
Nickerson and Briggler (2007, pp. 208-211) documented the removal of 
558 hellbenders (approximately 300 animals illegally) from the North 
Fork White River from 1969 to 1989. Anecdotal information suggests 
unauthorized collection of animals on the Spring River in Arkansas 
contributed to the recent population crash, as reaches of the Spring 
River that formerly contained 35 to 40 have had no individuals present 
for more than 10 years (Irwin 2008, pers. comm.). The decline is linked 
to unauthorized collecting because Ozark hellbenders were located in 
one small, easily accessible area of the Spring River, and no other 
event (such as a storm or chemical spill) had occurred in that area 
that would explain such a rapid decline (Irwin 2008, pers. comm.). Such 
amphibians as the hellbender (a relatively slow-moving, aquatic 
species) may be collected with little effort, making them even more 
susceptible to this threat.
    The unauthorized collection of hellbenders, primarily for the pet 
trade, remains a major concern. In 2001, an advertisement in a Buffalo, 
New York, newspaper was selling hellbenders for $50 each (Mayasich et 
al. 2003, p. 20). In 2003, a pet dealer in Florida posted an Internet 
ad that offered ``top dollar'' for large numbers of hellbenders (wanted 
in groups of at least 100; Briggler 2007, pers. comm.). Also in 2003, a 
person in Pennsylvania had an Internet posting stating specifically 
that an Ozark hellbender was wanted, no matter the price or regulatory 
consequence (Briggler 2007, pers. comm.). At the 2005 Hellbender 
Symposium, it was announced that U.S. hellbenders were found for sale 
in Japanese pet stores, which is likely the largest market for this 
species (Briggler, pers. comm. with Okada, 2005). In Japan, the 
majority of hellbenders are sought for pets rather than for food 
(Briggler, pers. comm. with Okada, 2005). As Ozark hellbenders become 
rarer, their market value is likely to increase. In fact, listing the 
subspecies as endangered may also enhance the subspecies potential 
commercial value as the rarity of the subspecies is made public.
    Few U.S. species listed under the Act have commercial value in 
trade; however, the Ozark hellbender does. Due to the market demand and 
the apparent willingness of individuals to collect hellbenders 
illegally, we believe that any action that publicly discloses the 
location of hellbenders (such as publication of specific critical 
habitat maps or locations) puts the species in further peril. For 
example, due to the threat of unauthorized collection and trade, the 
Missouri Department of Conservation and Arkansas Game and Fish 
Commission have implemented extraordinary measures to control and 
restrict information on the locations of Ozark hellbenders and no 
longer make location and survey information readily available to the 
public.
    Recreational fishing may also negatively impact Ozark hellbender 
populations due to animosity towards hellbenders, which some anglers 
believe to be poisonous and to interfere with fish production (Gates et 
al. 1985, p. 18). In addition, there are unpublished reports of 
hellbenders accidentally killed by frog or fish gigging (spearing), 
when a hellbender may get speared inadvertently (Nickerson and Briggler 
2007, pp. 209 and 212). The MDC reports that gigging popularity and 
pressure have increased, which

[[Page 54569]]

increases a potentially significant threat to hellbenders during the 
breeding season when they tend to move greater distances and congregate 
in small groups where they are an easy target for giggers (Nickerson 
and Briggler 2007, p. 212). The gigging season for suckers (fish mainly 
in the Catostomidae family) spans the reproductive season of the Ozark 
hellbender in the North Fork White River and overlaps that of the 
hellbender in other river basins as well. The sucker gigging season 
opens September 15, during the peak breeding period when hellbenders 
are most active and, therefore, most exposed. Gigging is popular in 
hellbender streams to such a degree that marks are often noticed on the 
bedrock and the river bottom from giggers' spears (Briggler 2007, pers. 
comm.). Although the chance of finding a gigged hellbender can be 
limited (due to presence of scavengers and the fast decomposition rate 
of amphibians), two gigged hellbenders were found along the stream bank 
on the North Fork White River in 2004 (Huang 2007, pers. comm.). In 
their studies of Missouri hellbenders, Nickerson and Mays (1973a, p. 
56) found dead gigged specimens, and they reference data showing how 
susceptible the species is to this threat. Ozark hellbenders are 
sometimes unintentionally caught by anglers. However, catching 
hellbenders while fishing is not a frequent occurrence and is not 
believed to be a significant threat to the species, especially if 
anglers follow instructions posted by the Missouri Department of 
Conservation to remove the hook or cut the fishing line and return the 
hellbender to the stream (Briggler 2009, pers. comm.).
Summary of Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    The Ozark hellbender is a rare and unique amphibian that has 
experienced extensive collection from the wild for various reasons. Due 
to the continued decline of the Ozark hellbender and history of its 
collection, State agencies in Missouri and Arkansas have implemented 
measures to reduce the threat of collection. These measures include 
moratoriums on issuance of scientific collecting permits; prohibiting 
the collection, possession, and sale of hellbender under appropriate 
State wildlife statutes; and controlling information on the location of 
hellbenders. The unauthorized collection of Ozark hellbenders for 
commercial sale in the pet trade, however, continues to be a 
significant threat.

C. Disease or predation

Disease (Chytridiomycosis)
    Background -- Chytridiomycosis (also known as chytrid fungus), a 
highly infectious amphibian disease caused by the pathogen 
Batrachochytrium dendrobatidis, is recently recognized to have a 
significant negative effect on the Ozark hellbender. B. dendrobatidis 
has been demonstrated to infect and kill all life stages of an 
increasing number of amphibian species worldwide (Berger et al. 1998, 
pp. 9031-9036). The Ozark hellbender is now included on the ever-
increasing global list of amphibian species potentially affected by 
this fatal pathogen (Speare and Berger 2005, pp. 1-9).
    The chytrid fungus attacks the keratinized tissue of amphibians' 
skin, which can lead to clinical signs of disease presence, such as 
thickened epidermis, lesions, body swelling, lethargy, abnormal 
posture, loss of righting reflex, and death (Daszak et al. 1999, pp. 
737-738; Bosch et al. 2001, p. 331; Carey et al. 2003, p. 130). It is 
believed that the amphibian chytrid fungus originated from Africa with 
the African clawed frog (Xenopus laevis), used throughout the United 
States in the 1930s and 1940s for pregnancy testing. This pathogen is 
now found on all continents except Asia, where species are currently 
being tested (Weldon et al. 2004, pp. 2100-2105; Speare and Berger 
2005, pp. 1-9).
    Currently, there are two theories on the development of the chytrid 
fungus as a global amphibian pathogen. One theory is that the chytrid 
fungus is not a new pathogen, but has increased in virulence or in host 
susceptibility caused by other factors (Berger et al. 1998, p. 9036). 
The other, more widely supported theory is that B. dendrobatidis is an 
introduced species whose spread has been described as an epidemic 
`wave-like' front (Lips et al. 2006, pp. 3166-3169; Morehouse et al. 
2003, p. 400).
    B. dendrobatidis lives in aquatic systems in which it `swims' 
(using spores) through the water and reproduces asexually. B. 
dendrobatidis develops most rapidly at 73.4 [deg]F (23 [deg]C) in 
culture, with slower growth rate at 82.4 [deg]F (28 [deg]C) and 
reversible stop of growth at 84.2 [deg]F (29 [deg]C; Daszak et al. 
1999, p. 741). The temperatures in Ozark streams are ideal for the 
spread and persistence of this pathogen. Based on U.S. Geological 
Survey water data from 1996-2006, the maximum temperature of these 
hellbender streams is 77.0 to 80.6 [deg]F (25 to 27 [deg]C), although 
the average water temperature over 1 year (for Eleven Point, Current, 
and North Fork White River) is approximately 59.0 to 60.8 [deg]F (15 to 
16 [deg]C; Barr 2008, pers. comm.) .
    Persistence of the chytrid fungus may be further enhanced by 
saprophytic development (obtaining nourishment from dead or decaying 
material in water; Daszak et al. 1999, p. 740). Johnson and Speare 
(2003, pp. 923-924) found that B. dendrobatidis can survive 
saprophytically outside the amphibian host for up to 7 weeks in lake 
water and 3 to 4 weeks in tap water. Further, Carey et al. (2003, p. 
130) found that amphibians can be infected when placed either in water 
containing zoospores that were placed specifically in the water, or in 
water from which infected animals have been recently removed. The 
possibility that B. dendrobatidis can develop for even a short period 
of time outside the amphibian host may greatly increase its impact and 
accelerate host population declines (Carey et al. 2003, p. 130). Also, 
the possibility of long-term survival of B. dendrobatidis as a 
saprophyte may explain the lack of recolonization of streams from which 
amphibians, such as the Ozark hellbender, have been extirpated (Daszak 
et al. 1999, p. 740). Moreover, hellbenders that are not already 
infected with the pathogen are continually at risk because temperatures 
are ideal for the persistence of the chytrid fungus in the water 
(without a host) for a long period.
    Habitat specializations and a variety of underlying predisposing 
environmental factors may make an animal more vulnerable to exposure to 
the pathogen, especially for species such as the Ozark hellbender that 
carry out their life cycle in aquatic rather than terrestrial habitats 
(Carey et al. 2003, p. 131). Since the Ozark hellbender lives in an 
aquatic system throughout its entire life, there is no possibility for 
relief from this pathogen. Climate change is one of the environmental 
factors that has been indicated as a key promoter in the spread of the 
B. dendrobatidis pathogen (Pounds et al. 2006, pp. 161-167). Rachowicz 
et al. (2006, pp. 1676-1682) found that chytridiomycosis was implicated 
in the local extirpations of two species of frog, and they conclude 
with high confidence that large-scale warming was the key factor in the 
disappearances of these two species. Although environmental factors 
(for example, increased UV-B, chemical pollution, climate change) may 
predispose amphibian populations to pathogens, evidence suggests that 
cofactors are not required for chytridiomycosis to cause mass amphibian 
deaths (Daszak et al. 1999, p. 741).

[[Page 54570]]

    Overall, chytridiomycosis has been implicated in local population 
extirpations, sustained population declines, and possibly species 
extinctions for many amphibian species (Berger et al. 1998, pp. 9031-
9036; Bosch et al. 2001, pp. 331-337). Chytrid fungi are the best 
supported pathogen related to amphibian declines, with over 93 species 
worldwide affected as of 2005 (Collins and Storfer 2003, pp. 89-98; 
Daszak et al. 2003, pp. 141-150; Speare and Berger 2005, p. 1). For 
example, in surveys conducted by Lips et al. (2006, pp. 3165-3166) in 
Costa Rica and Panama, over only a few months of surveying, frog and 
salamander species richness and amphibian density declined by more than 
60 percent and 90 percent, respectively.
    Disease in captive hellbenders -- The St. Louis Zoo maintains a 
captive population of Ozark and eastern hellbenders. In March 2006, 
there was a power outage in the Zoo's herpetarium, including the area 
where the hellbenders are held. Soon after the power outage (which may 
have stressed the hellbenders and reduced their immunity), several 
hellbenders were observed ``with substrate (rocks) sticking to the skin 
and many were floating'' (Duncan 2007, pers. comm.). More than 75 
percent of the captive population whose death occurred from March 2006 
through April 2007 (59 individuals) likely resulted directly from B. 
dendrobatidis. As Randall Junge, Doctor of Veterinary Medicine, 
Director of Animal Health and Nutrition at the St. Louis Zoo (2007, 
pers. comm.) stated, ``* * * in our captive [hellbender] population, it 
[chytridiomycosis] is the leading cause of mortality. In my opinion, if 
this disease becomes established throughout the hellbender range, it 
will have a significant [further] impact on the population.'' Deaths 
relating to chytridiomycosis continue as the zoo staff searches for an 
effective way to treat infected animals (Utrup 2007, pers. comm.).
    Disease in wild hellbenders -- As a result of the incident of B. 
dendrobatidis in the St. Louis Zoo hellbender population, in 2006 the 
Missouri Department of Conservation began testing wild hellbenders in 
Missouri for infection by the pathogen. All Ozark hellbender streams 
surveyed had individual hellbenders that tested positive for the 
pathogen (Briggler 2008b, pers. comm.). Data from 2006 and 2007 show 
that, for the presence of B. dendrobatidis within the Current River, 20 
percent of the population is positive (heavily positive in a few 
locations); within the Eleven Point River (Missouri and Arkansas), 16 
percent is positive (positives spread throughout river); and within the 
North Fork of the White River, 15 percent is positive (positives spread 
throughout river) (Briggler 2008b, pers. comm.). These results indicate 
the minimum number of infected individuals since polymerase chain 
reaction (PCR) tests for B. dendrobatidis may produce false negative 
results if the infection is localized in different tissues than were 
analyzed (Beard and O'Neill 2005, p. 594). The only Ozark hellbender 
river not surveyed for the pathogen was the Spring River, where the 
subspecies is believed to be extirpated (Irwin 2008, pers. comm.). 
During future surveys, all animals encountered (new and re-captures) 
will be tested for the presence of B. dendrobatidis. Researchers view 
the presence of B. dendrobatidis as one of the most, if not the most, 
challenging factors affecting the survival of this subspecies (Briggler 
et al. 2007, p. 83).
    Since there is clear evidence that chytridiomycosis, a fatal 
disease in captive Ozark hellbenders, also has been documented in the 
wild Ozark hellbender population, it is crucial that we not only 
research techniques to combat this disease, but also address all other 
threats that may be linked to susceptibility (degraded environmental 
conditions). The immediacy of this threat has been significantly 
heightened since this pathogen has been found to occur in all remaining 
populations of the Ozark hellbender. Researchers are in agreement that 
this subspecies will have little chance of survival if factors 
significantly affecting the hellbender are not ameliorated to some 
degree, especially in light of the additional severe threat of 
chytridiomycosis (Utrup 2008, pers. comm.).
Abnormalities
    Wheeler et al. (2003, pp. 250-251) investigated morphological 
aberrations in the hellbender over a 10-year period. They obtained 
deformity data from salamanders that were examined during population 
and distributional surveys in the Eleven Point River, North Fork of the 
White River, and Spring River dating back to 1990. They found a variety 
of abnormal limb structures, including missing toes, feet, and limbs. 
Additional abnormalities encountered include epidermal lesions, 
blindness, missing eyes, and bifurcated limbs. Three hellbenders were 
documented with tumors on their bodies in the Spring River in Arkansas. 
Currently, we are unable to evaluate the importance of these 
abnormalities in light of the recent precipitous decline in hellbenders 
observed in these rivers. Briggler (2007, pers. comm.) is evaluating 
and compiling additional information on these abnormalities and 
lesions, including the frequency of occurrence. Several hellbenders 
with these abnormalities were x-rayed and are being analyzed by Jeff 
Briggler, Missouri Department of Conservation. One hellbender with 
extreme abnormalities (all limbs missing) was sacrificed and sent to 
U.S. Geological Survey's (USGS) Wildlife Disease Lab in Madison, 
Wisconsin, for necropsy, where the conclusive cause for the 
individual's missing limbs and digits could not be determined.
    In 2004, 72 percent of Ozark hellbenders captured had abnormalities 
present. For reference, 49 percent of eastern hellbenders captured in 
Missouri had abnormalities (Briggler 2007, pers. comm.). In 2006, 90 
percent of Ozark hellbenders surveyed from the Eleven Point River 
(Missouri), 73 percent from the Current River, and 67 percent from the 
North Fork of the White River had abnormalities (Briggler 2007, pers. 
comm.). In general, abnormalities in Ozark hellbenders are becoming 
increasingly common and severe, often to a level that the animals are 
near death (for example, missing digits on all or most limbs, missing 
all or most limbs; Briggler 2007, pers. comm.). Most, if not all, 
hellbenders collected in the past decade from the Spring River have had 
some type of major malformity or lesions (Davidson 2008, pers. comm.). 
In fact, a hellbender found in the Spring River in 2004 was missing all 
four feet and was covered in lesions and a fungal growth externally and 
inside its mouth; this animal died within 15 minutes of capture 
(Davidson 2008, pers. comm.). Although these abnormalities have not 
been linked conclusively with the presence of B. dendrobatidis, 
considering the types of abnormalities documented (for example, 
lesions, digit and appendage loss, epidermal sloughing), there may be a 
connection (Briggler 2007, pers. comm.).
Predation
    Trout stocking has increased in recent years both in Missouri and 
Arkansas. In Missouri, both nonnative brown trout (Salmo trutta) and 
nonnative rainbow trout (Oncorhynchus mykiss) have been sporadically 
introduced into Ozark area waters for recreational fishing purposes 
since the 1800s. The 2003 MDC Trout Management Plan calls for increased 
levels of stocking as well as increasing the length of cold water 
streams that will be stocked with brown and rainbow trout (Missouri 
Department of Conservation 2003, pp. 31-32). Nonnative trout are 
stocked in all rivers

[[Page 54571]]

that historically and currently contain hellbenders (rainbow trout: 
Niangua, Gasconade, Big Piney, Current, North Fork White, Eleven Point, 
and Spring rivers; brown trout: Niangua, Gasconade, North Fork White, 
and Current Rivers) in Missouri (Missouri Department of Conservation 
2003, pp. 24-26). In Arkansas, the Arkansas Game and Fish Commission is 
currently working with the U.S. Army Corps of Engineers to improve cold 
water releases from mainstem dams along the White River, to improve 
conditions for trout below the reservoirs (U.S. Army Corps of Engineers 
2008, pp. 1-40).
    Introduced fishes have had dramatic negative effects on populations 
of amphibians throughout North America (Bradford 1989, pp. 776-778; 
Funk and Dunlap 1999, pp. 1760-1766; Gillespie 2001, pp. 192-196; 
Pilliod and Peterson 2001, pp. 326-331; Vredenburg 2004, pp. 7648-
7649). Rainbow trout and brown trout are considered opportunists in 
diet, varying their diet with what is available, including larval 
amphibians (Smith 1985, p. 231; Pflieger 1997, pp. 224-225). Brown 
trout grow bigger and tolerate a wider range of habitats than rainbow 
trout and, therefore, may be a more serious threat to hellbenders, 
particularly at the larval stage. Dunham et al. (2004, pp. 19-24) 
assessed the impacts of nonnative trout in headwater ecosystems in 
western North America. The authors documented at least eight amphibian 
species that exhibited negative associations with nonnative trout in 
mountain lakes, specifically regarding the occurrence or abundance of 
larval life stages of native amphibians. Also, salamander species, such 
as the long-toed salamander (Ambystoma macrodactylum), have been 
extirpated from waterbodies in high-elevation lakes in western North 
America due to stocked nonnative trout (Pilliod and Peterson 2001, p. 
330).
    Preliminary data suggest that larval hellbenders from declining 
populations in Missouri do not recognize brown trout as dangerous 
predators. In contrast, larvae from more stable southeastern (U.S.) 
populations that co-occur with native trout show ``fright'' responses 
to brown trout (Mathis 2008a, pers. comm.). A recent study conducted by 
Gall (2008, pp. 1-86) confirmed results found with this preliminary 
data on Missouri hellbender populations.
    Gall (2008, p. 3) examined hellbender (Ozark and eastern) predator-
prey interactions by (1) studying the foraging behavior of predatory 
fish species (native and nonnative (trout)) in response to the presence 
of hellbender secretion (a potentially noxious chemical cue produced by 
stressed hellbenders), (2) comparing the number of secretion-soaked 
food pellets consumed by rainbow and brown trout, and (3) comparing the 
response of larval hellbenders to chemical stimuli from native and 
nonnative predatory fishes. Gall (2008, p. 23, pp. 30-31) found that 
brown trout were attracted to the secretion emitted by hellbenders, and 
hellbender secretions were more palatable to brown trout than to 
rainbow trout. Also, although hellbenders exhibited only weak fright 
responses when exposed to trout stimuli, they responded with strong 
fright responses to native predatory fish.
    Gall (2008, p. 63) suggests that the limited evolutionary history 
between salmonids (brown and rainbow trout) and hellbenders in Missouri 
is likely responsible for the weak fright behavior exhibited by 
hellbenders in response to trout stimuli. Although brown and rainbow 
trout are a threat to hellbenders, results from this study indicate 
that rainbow trout are less of an immediate concern than brown trout 
(Gall, pp. 63-64). This may be due to the difference in diet of the two 
species; rainbow trout maintain a predominately invertebrate diet 
throughout their lives and brown trout switch from predominately 
invertebrate prey to predominately vertebrate prey (including 
salamanders) at about 8.7 in (22 cm) in length (Gall 2008, p. 60). 
Overall, this study found evidence that predation by introduced trout 
cannot be ruled out as a factor affecting the Ozark hellbender and 
possibly contributes to the decline of both Ozark and eastern 
hellbender populations in Missouri (Gall 2008, p. 63).
    In addition to brown trout, walleye (Stizostedion vitreum), 
although a native species, have been stimulated to approach prey more 
often and faster in the presence of hellbender secretions (Gall 2008, 
pp. 23-24). This may be a concern if walleye are further stocked in 
hellbender streams, because walleye share similar activity periods with 
hellbenders (Mathis 2008b, pers. comm.).
Summary of Disease or Predation
    The discovery of the presence of Batrachochytrium dendrobatidis 
(chytridiomycosis) in 2006 within all remaining populations of the 
Ozark hellbender has made increased protection even more important to 
the persistence of this subspecies (Utrup 2007, pers. comm.). This 
pathogen occurs throughout the entire range of the Ozark hellbender and 
is determined to be a significant threat to the subspecies. The threat 
from chytridiomycosis is significant and immediate because: (1) It is 
proven to be a fatal pathogen to Ozark hellbenders in captivity, and 
(2) in the wild, all streams with extant Ozark hellbender populations 
have individuals that tested positive for the pathogen (Briggler 2008b, 
pers. comm.). In addition, although it is unclear if there is a 
connection to chytridiomycosis, abnormalities found on Ozark 
hellbenders are increasingly severe, often to a level that the animal 
is approaching death (Briggler 2008a, pers. comm.). Researchers view 
chytridiomycosis as one of the most serious threats to the survival of 
this subspecies (Briggler et al. 2007, p. 83).
    Nonnative trout are stocked in all rivers that historically and 
currently contain hellbenders in Missouri. Predation of larval 
hellbenders by nonnative trout possibly contributes to the decline of 
Ozark hellbender populations in Missouri and may be a growing concern 
if predatory fish continue to be stocked (or are stocked in larger 
numbers) in hellbender streams.

D. The inadequacy of existing regulatory mechanisms.

    In Arkansas, hellbenders may be collected with a scientific 
collecting permit from the AGFC; however, no permits are anticipated to 
be issued now or in the future because the State acknowledges the 
severely imperiled status of the subspecies (Irwin 2008, pers. comm.). 
Although Arkansas does not have a State endangered and threatened 
species list, the State considers the Ozark hellbender a nongame 
species and prohibits collection without a permit. The Ozark hellbender 
is a State-endangered species in Missouri, which prohibits importation, 
exportation, transportation, sale, purchase, taking, and possession of 
the species without a permit. MDC placed a moratorium on hellbender 
collecting from 1991 to 1996 and has since allowed only limited numbers 
of collecting permits (Horner 2008, pers. comm.). Despite receiving 
maximum protection by both States, continued unauthorized collecting 
for the pet trade has been documented and remains a threat throughout 
the range.
Clean Water Act
    Although the Clean Water Act of 1972 (CWA (Pub. L. 92-500)) 
resulted in an overall gain in water quality in streams, degraded water 
quality still is a significant factor affecting such highly sensitive 
aquatic organisms as the Ozark hellbender. Non-point pollution sources 
(for example, animal and human waste, agricultural practices, increased 
road construction) may be causing much of

[[Page 54572]]

the degraded water quality throughout the Ozark hellbender's range. 
This is more apparent in stretches of rivers that are not within 
federally or State protected lands (Irwin 2008, pers. comm.).
    The court's decision in American Mining Congress v. U.S. Army Corps 
of Engineers (D.D.C. 1997) resulted in the U.S. Army Corps of Engineers 
deregulating gravel removal activities under section 404 of the CWA. 
The court found that ``de-minimus'' or incidental fallback of sand and 
gravel into the stream from which it was being excavated did not 
constitute the placement of fill by the mining operation. Hence, the 
court ruled that the Army Corps of Engineers had exceeded their 
authority in requiring a permit for this activity. Although these 
activities no longer require a Clean Water Act 404 permit, commercial 
operations in Missouri must apply for a State permit through the 
Missouri Department of Natural Resources Land Reclamation Program. 
Modifications of stream channels associated with gravel mining, as well 
as the removal of pebbles and cobble that are important microhabitat 
for larvae and subadults, contribute to the decline of Ozark 
hellbenders in these systems.
Lacey Act
    State regulations for gigging and for trout stocking do not protect 
the Ozark hellbender. The gigging season for suckers (fish mainly in 
the Catostomidae family) spans the reproductive season of the Ozark 
hellbender in the North Fork White River and overlaps that of the 
hellbender in other river basins as well. The sucker gigging season 
opens annually on September 15, during the peak breeding period when 
hellbenders are most active and, therefore, most exposed. The 2003 MDC 
Trout Management Plan calls for increased levels of stocking as well as 
increasing the length of cold water streams that will be stocked with 
brown and rainbow trout (Missouri Department of Conservation 2003, pp. 
31-32). In Arkansas, the Arkansas Game and Fish Commission is currently 
working with the U.S. Army Corps of Engineers to improve cold water 
releases from mainstem dams along the White River to improve conditions 
for trout below the reservoirs (U.S. Army Corps of Engineers 2008, pp. 
1-40).
    Under section 3372(a)(1) of the Lacey Act Amendments of 1981 (16 
U.S.C. 3371-3378), it is unlawful to import, export, transport, sell, 
receive, acquire, or purchase any wildlife taken, possessed, 
transported, or sold in violation of any law, treaty, or regulation of 
the United States. This prohibition of the Lacey Act would apply in 
instances where a person engages in a prohibited act with an Ozark 
hellbender unlawfully collected from Federal lands, such as those 
Federal lands within the range of the Ozark hellbender that are owned 
and managed by the U.S. Forest Service or the National Park Service. It 
is unlawful under section 3372(a)(2)(A) of the Lacey Act Amendments of 
1981 to import, export, transport, sell, receive, acquire, or purchase 
in interstate or foreign commerce any wildlife taken, possessed, 
transported, or sold in violation of any law or regulation of any 
State.
    Because it is a violation of Missouri and Arkansas laws and 
regulations to sell, purchase, or engage in any actions relating to the 
commercial trade of Ozark hellbenders (for example, import, export, 
ship, or transport), any interstate or foreign commerce of the Ozark 
hellbender would result in a violation of the Lacey Act Amendments of 
1981. However, if an Ozark hellbender is not declared as the subspecies 
but rather as hellbender or eastern hellbender, then it would be 
difficult for the wildlife inspector to identify it as the prohibited 
subspecies. Although the prohibitions and penalties of the Lacey Act 
Amendments of 1981 provide some protection for the Ozark hellbender, 
this law, by itself, does not adequately prevent or reduce the illegal 
commercial trade of hellbenders.
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES)
    The unauthorized collection and trade of Ozark hellbenders within 
the United States and internationally is of growing concern, 
particularly as rarity increases and, consequently, commercial value 
increases. The Ozark hellbender is not listed on the appendices of 
CITES. CITES is an international agreement between governments with the 
purpose of ensuring that international trade in wild animals and plants 
does not threaten their survival. CITES listing of the Ozark hellbender 
would aid in curbing unauthorized international trade of hellbenders.
    Elsewhere in today's Federal Register, the Service is proposing to 
include the hellbender (both the eastern and Ozark subspecies) in 
Appendix III of CITES. CITES can list species in one of three 
appendices. Appendix I includes species threatened with extinction that 
are or may be affected by international trade. Appendix II includes 
species that, although not necessarily threatened with extinction now, 
may become so unless the trade is strictly controlled. Appendix II also 
includes species that CITES must regulate so that trade in other listed 
species may be brought under effective control (for example, because of 
similarity of appearance between listed species and other species). 
Appendix III includes native species identified by any Party country 
that needs to be regulated to prevent or restrict exploitation; under 
Appendix III, that Party country requests the help of other Parties to 
monitor and control the trade of that species. Based on the criteria 
described in 50 CFR 23.90, the eastern and the Ozark hellbenders 
qualify for listing in CITES Appendix III. Listing all hellbenders in 
Appendix III is necessary to allow us to adequately monitor 
international trade in the taxa; to determine whether exports are 
occurring legally, with respect to State law; and to determine whether 
further measures under CITES or other laws are required to conserve 
this species and its subspecies. Appendix-III listings will lend 
additional support to State wildlife agencies in their efforts to 
regulate and manage hellbenders, improve data gathering to increase our 
knowledge of trade in hellbenders, and strengthen State and Federal 
wildlife enforcement activities to prevent poaching and illegal trade.
Summary of the Inadequacy of Existing Regulatory Mechanisms
    Some existing regulatory mechanisms provide protection for the 
Ozark hellbender and its habitat. Existing Federal and State water 
quality laws can be applied to protect water quality in streams 
occupied by the hellbender. The requirement for a U.S. Army Corps of 
Engineers dredge and fill permit under section 404 of the Clean Water 
Act has resulted in an overall gain in water quality. However, ongoing 
gravel mining in hellbender streams is no longer regulated by the Corps 
of Engineers under section 404 of the Clean Water Act. Although the 
Lacey Act provides some protection, the current regulatory mechanisms 
are not adequate to protect Ozark hellbenders from unauthorized 
collection for commercial sale in the pet trade. The Service has also 
proposed, but not finalized, listing the eastern and Ozark hellbender 
in Appendix III of CITES. Nonetheless, even if the CITES listing is 
finalized, it would only apply to the export of hellbenders from the 
United States.

[[Page 54573]]

E. Other natural or manmade factors affecting its continued existence.

    Small, Isolated Populations - The small size and isolation of 
remaining populations of the Ozark hellbender make it vulnerable to 
extinction due to genetic drift, inbreeding depression, and random or 
chance changes to the environment (Smith 1990, pp. 311-321) that can 
significantly impact hellbender habitat. Inbreeding depression can 
result in death, decreased fertility, smaller body size, loss of vigor, 
reduced fitness, and various chromosome abnormalities (Smith 1990, pp. 
311-321). Despite any evolutionary adaptations for rarity, habitat loss 
and degradation increase a species' vulnerability to extinction (Noss 
and Cooperrider 1994, pp. 58-62). Numerous authors (such as Noss and 
Cooperrider 1994, pp. 58-62; Thomas 1994, p. 373) have indicated that 
the probability of extinction increases with decreasing habitat 
availability. Although changes in the environment may cause populations 
to fluctuate naturally, small and low-density populations are more 
likely to fluctuate below a minimum viable population (the minimum or 
threshold number of individuals needed in a population to persist in a 
viable state for a given interval; Gilpin and Soule 1986, pp. 25-33; 
Shaffer 1981, p. 131; Shaffer and Samson 1985, pp. 148-150).
    The loss of genetic diversity in Ozark hellbenders is illustrated 
by Routman's (1993, p. 410-415) study, in which hellbender populations 
from different rivers showed very little within-population variability, 
and relatively high between-population variability. Due to this 
population fragmentation, local extirpations cannot be naturally 
repopulated. Current factors negatively affecting the habitat of the 
Ozark hellbender may exacerbate potential problems associated with its 
low population numbers and the isolation of those small populations 
from each other, which increases the chances of this species going 
extinct.
    Recruitment and Reproductive Capability - The hellbender's late 
sexual maturity leads to a higher risk of death prior to reproduction 
and lengthened generation times (Congdon et al. 1993, pp. 831-832). 
Hellbender specimens less than 5 years of age are uncommon (Taber et 
al. 1975, pp. 636-637; Pfingsten 1990, p. 49), and recent research has 
indicated that the age structure has shifted, resulting in the 
prevalence of older individuals (Pfingsten 1990, p. 49; Wheeler et al. 
2003, p. 153 and p. 155).
    Because hellbenders are long-lived, a population may not be highly 
dependent on recruitment to remain extant (Mayasich et al. 2003, p. 
22). Empirical and theoretical evidence suggests, however, that the 
amount of generation overlap within a population (high survivorship 
among juveniles) is necessary to maintain stable populations (Congdon 
et al. 1993, pp. 830-832; Ellner and Hairston 1994, pp. 413-415). Lack 
of sufficient recruitment may be limiting the population stability and 
the ability of hellbender populations to maintain genetic diversity as 
their habitat is altered (Wheeler et al. 2003, p. 155). Pfingsten 
(1990, p. 49) also cautions, however, that lack of larvae detection 
could mean that the larvae occupy a microhabitat that has yet to be 
surveyed.
    Unger (2003, pp. 30-36) compared several measures of sperm 
production between male Ozark and eastern hellbenders in Missouri and 
eastern hellbender males from more stable populations in North Carolina 
and Georgia. Sperm counts were significantly lower for males from both 
tested Missouri populations than for males from southeastern 
populations. Populations were not significantly different with respect 
to sperm viability and motility. The sperm of Missouri males had 
proportionally smaller heads for their tail lengths; this difference 
was relatively small, but was statistically significant. There is a 
clear need to direct resources toward determining the cause of the 
apparent reduction in sperm counts for males from declining populations 
in Missouri. Because motility and viability appeared unaffected, 
artificial insemination might be a viable conservation technique, 
although limited efforts to date have been successful (Unger 2003, pp. 
65-66).
    The extremely low number or lack of juveniles in most Ozark 
hellbender populations is a significant sign that little reproduction 
has occurred in these populations for several years. Late age of 
reproductive maturity, when paired with a long lifespan, can disguise 
population declines resulting from activities that occurred years 
earlier until the adults begin dying and numbers begin declining from 
lack of recruitment. The present distribution and status of Ozark 
hellbender populations in the White River system in Arkansas and 
Missouri are exhibiting such a decline (Wheeler et al. 2003, p. 155). 
Genetic studies have repeatedly demonstrated very low genetic diversity 
in hellbender populations, which may be a factor in the decline of the 
species (Routman 1993, Kucuktas et al. 2001). The current combination 
of population fragmentation, disease, and habitat degradation will 
prohibit this species from recovering without the intervention of 
conservation measures designed to facilitate hellbender recovery.
Summary of Other Natural or Manmade Factors Affecting Its Continued 
Existence
    The small size and isolation of Ozark hellbender populations and 
loss of genetic diversity could exacerbate other factors negatively 
affecting the subspecies and accelerate possible extinction. These 
factors are particularly detrimental when combined with the factors 
affecting the hellbender, such as of habitat loss, water quality 
degradation, chytridiomycosis, and unauthorized collection and trade.
Proposed Determination
    Although no clear estimates exist for how many Ozark hellbenders 
historically inhabited Missouri and Arkansas, surveys over recent years 
have documented a severe decline in all populations. To illustrate this 
decline, consider the current total range-wide population estimate of 
590 (Briggler et al. 2007, p. 83) compared to the results of one 1973 
study indicating approximately 1,150 hellbenders within less than 1.2 
mi (2 km) of one occupied river (Nickerson and Mays 1973b, p. 1165).
    In addition to the severe population declines, the known factors 
negatively affecting and subsequent threats to the Ozark hellbender 
have continued to increase since we elevated the species to candidate 
status in 2001 (66 FR 54808; October 30, 2001). In particular, the 
discovery of the presence of Batrachochytrium dendrobatidis 
(chytridiomycosis) in 2006 within all remaining populations of the 
Ozark hellbender has made increased protection even more important to 
persistence of this subspecies (Utrup 2007, pers. comm.). Researchers 
view chytridiomycosis as one of the most serious threats to the 
survival of this subspecies, which has a total estimated population 
size of 590 individuals (Briggler et al. 2007, p. 83).
    The decrease in Ozark hellbender population size and the shift in 
age structure are likely caused in part by a variety of historical and 
ongoing activities. It is believed that one of the primary causes of 
these trends is habitat destruction and modification from siltation and 
water quality degradation. The sources include industrialization, 
agricultural runoff, mine waste, and activities related to timber 
harvesting. Increased siltation affects hellbenders in a variety of 
ways, such as suffocating eggs, eliminating suitable habitat for all

[[Page 54574]]

life stages, reducing dissolved oxygen levels, increasing contaminants 
(that bind to sediments), and reducing prey populations. Increased 
nitrate levels and fecal coliform, along with a variety of other 
contaminants from agricultural runoff and increased urbanization, have 
been detected in hellbender streams, which not only negatively affects 
hellbenders directly but also the Ozark aquatic ecosystems in general. 
Impoundments alter habitat directly, isolate populations, and change 
water temperatures and flows below reservoirs. Remaining Ozark 
hellbender populations are small and isolated, in part due to increased 
impoundments over time, making hellbenders vulnerable to individual 
catastrophic events and reducing the likelihood of recolonization after 
localized extirpations.
    Recreational pressure (for example, boat traffic, horseback riding, 
and ORV use) in streams inhabited by Ozark hellbenders has increased 
substantially on an annual basis, directly disturbing the habitat. Fish 
and frog gigging popularity and pressure continue to increase, 
presenting a significant threat to hellbenders during the breeding 
season (Nickerson and Briggler 2007, pp. 209-211). Trout stocking 
continues to occur on hellbender streams both in Missouri and Arkansas. 
The lack of larval and sub-adult hellbenders present may be attributed 
to predation by nonnative stocked trout. The increase in number or size 
of recreational boats and tubes, commercial horse trail ride 
outfitters, and ORV use has increased disturbance and contamination 
(for example, fecal coliform).
    The unauthorized collection of hellbenders, especially for the pet 
trade, remains a major concern, particularly with market values 
continually increasing. Existing regulations targeting this significant 
threat, including State laws, have not been completely successful in 
preventing the unauthorized collection and trade of Ozark hellbenders.
    The combined impact of degraded environmental conditions, along 
with the increased susceptibility to chytridiomycosis due to these 
threats, has created a situation in which the Ozark hellbender is 
likely to become functionally extinct (populations no longer viable) 
within the next couple decades. Researchers and managers agree that, 
while a solution is being reached to directly address the presence of 
the chytrid fungus within Ozark hellbender populations, all other 
factors significantly affecting the hellbender must be ameliorated to 
prevent the imminent extinction of this subspecies.
    Projections from the August 2006 PHVA model concluded that the 
Ozark hellbender metapopulations are expected to decline by more than 
50 percent in 12 to 16 years, viability of all individual populations 
will be low after 20 to 25 years (total individuals equaled fewer than 
100 and genetic diversity was less than 90 percent), and risk of 
metapopulation extinction is high within 40 to 50 years. These 
projections may be optimistic because they are based on best-case 
density estimates and assume that hellbender populations within each 
river system are continuous and did not account for the prevalence of 
chytrid fungus and its possible effects on hellbenders. Hellbenders do 
not travel great distances, however, and subpopulations within each 
river system are often separated by miles (kilometers) of unsuitable 
habitat resulting in fragmented populations. These models projected the 
Ozark hellbender subspecies to be functionally extinct within 20 years 
(Briggler et al. 2007, pp. 88-90 and 97).
    We determine foreseeable future on a case-by-case basis, taking 
into consideration a variety of species-specific factors such as 
lifespan, genetics, breeding behavior, demography, threat-projection 
timeframes, and environmental variability. Based on the observed 
population decline in the subspecies and the threats as discussed, we 
find that the Ozark hellbender is in danger of extinction throughout 
all of its range. One information source (Briggler et al. 2007, pp. 88-
90 and p. 97) estimates that the subspecies may be functionally extinct 
by 2026 (less than 20 years) if we do not take actions to slow or 
reverse the downward trajectory.
    We have carefully assessed the best scientific and commercial 
information available regarding past, present, and future threats to 
the Ozark hellbender. The population numbers continue to decline as a 
result of the multiple threats impacting this subspecies, increasing 
extinction risk. Based on the immediacy and ongoing significant threats 
to the subspecies throughout its entire range, we find the subspecies 
to be in danger of extinction throughout all of its range. Therefore, 
on the basis of the best -scientific and commercial information 
available, we are proposing to list the Ozark hellbender as an 
endangered species. Because we find that this subspecies meets the 
definition of an endangered species (in danger of extinction) 
throughout all of its range, it is unnecessary to analyze its status in 
a significant portion of its range.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (i) 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
    (I) essential to the conservation of the species and
    (II) which may require special management considerations or 
protection; and
    (ii) 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.
    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 prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) requires consultation on Federal actions that 
may affect 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 seeks or 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 would apply, but even in the event of a 
destruction or adverse modification finding, Federal action agency's 
and the applicant's obligation is not to restore or recover the 
species, but to implement

[[Page 54575]]

reasonable and prudent alternatives to avoid destruction or adverse 
modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
physical and biological features (PBFs) laid out in the appropriate 
quantity and spatial arrangement for the conservation of the species). 
Under the Act and regulations at 50 CFR 424.12, we can designate 
critical habitat in areas outside the geographical area occupied by the 
species at the time it is listed only when we determine that those 
areas are essential for the conservation of the species and that 
designation limited to those areas occupied at the time of listing 
would be inadequate to ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, 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 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, or other unpublished materials and 
expert opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, 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 required for recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. Areas that support populations are also subject to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available scientific 
information at the time of the agency action. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. 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, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time these planning efforts 
calls for a different outcome.
Prudency Determination

Background

    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, we designate critical habitat at the time the 
species is determined to be endangered or threatened. Our regulations 
(50 CFR 424.12(a)(1)) state that the designation of critical habitat is 
not prudent when one or both of the following circumstances exist: (1) 
The species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species. We have determined that 
both circumstances apply to the Ozark hellbender. This determination 
involves a weighing of the expected increase in threats associated with 
a critical habitat designation against the benefits gained by a 
critical habitat designation. An explanation of this ``balancing'' 
evaluation follows.

Increased Threat to the Taxon by Designating Critical Habitat

    The unauthorized collection of Ozark hellbenders for the pet trade 
is a factor contributing to hellbender declines (Nickerson and Briggler 
2007, p. 214) and remains a significant threat today, particularly with 
increasing international market values. For a detailed discussion on 
the threat of commercial collection, see factor B (Overutilization for 
commercial, recreational, scientific, or educational purposes).
    The process of designating critical habitat would increase human 
threats to the Ozark hellbender by increasing the vulnerability of this 
species to unauthorized collection and trade through public disclosure 
of its locations. Designation of critical habitat requires the 
publication of maps and a very specific narrative description of 
critical habitat areas in the Federal Register. The degree of detail in 
those maps and boundary descriptions is far greater than the general 
location descriptions provided in this proposal to list the species as 
endangered. Furthermore, a critical habitat designation normally 
results in the news media publishing articles in local newspapers and 
special interest websites, usually with maps of the critical habitat. 
We believe that the publication of maps and descriptions outlining the 
locations of this critically imperiled taxon will further facilitate 
unauthorized collection and trade, as collectors will know the exact 
locations where Ozark hellbenders occur. Ozark hellbenders are easily 
collected because they are slow moving and have extremely small home 
ranges. Therefore, publishing specific location information would 
provide a high level of assurance that any person going to a specific 
location would be able to successfully locate and collect specimens 
given the species site fidelity and ease of capture once located.
    Due to the threat of unauthorized collection and trade, the 
Missouri Department of Conservation and the Arkansas Game and Fish 
Commission have implemented extraordinary measures to control and 
restrict information on the locations of Ozark hellbenders. These 
agencies have expressed to the Service serious concerns with publishing 
maps and boundary descriptions of Ozark hellbender areas associated 
with critical habitat designation (Briggler and Irwin 2008, pers. 
comm.). The agencies believe that designating critical habitat

[[Page 54576]]

could negate their efforts to restrict access to location information 
that could significantly affect future efforts to control the threat of 
unauthorized collection and trade of Ozark hellbenders.

Benefits to the Species from Critical Habitat Designation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the 5\th\ and 9\th\ Circuit Court of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F. 3d 1059 (9\th\ Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5\th\ Cir. 2001)), and we do not 
rely on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain those PBFs that relate to the ability of the area 
to periodically support the species) to serve its intended conservation 
role for the species.
    Critical habitat only provides protections where there is a Federal 
nexus, that is, those actions that come under the purview of section 7 
of the Act. Critical habitat designation has no application to actions 
that do not have a Federal nexus. Section 7(a)(2) of the Act mandates 
that Federal agencies, in consultation with the Service, evaluate the 
effects of its proposed action on any designated critical habitat. 
Similar to the Act's requirement that a Federal agency action not 
jeopardize the continued existence of listed species, Federal agencies 
have the responsibility not to implement actions that would destroy or 
adversely modify designated critical habitat. Critical habitat 
designation alone, however, does not require that a Federal action 
agency implement specific steps toward species recovery.
    Ozark hellbenders primarily occur on non-Federal lands. The species 
occurs exclusively on private lands in Arkansas and predominately on 
private lands in Missouri. In Missouri, Ozark hellbenders do occur on 
lands managed by the National Park Service (Ozark National Scenic 
Riverway) and U.S. Forest Service (Mark Twain National Forest). We 
anticipate that some actions on non-Federal lands will have a Federal 
nexus (for example, requirement for a permit to discharge dredge and 
fill material from the U.S. Army Corps of Engineers) for an action that 
may adversely affect the hellbender. There is also the potential that 
some proposed actions by the National Park Service and U.S. Forest 
Service may adversely affect the hellbender. However, both of these 
Federal agencies are implementing measures to ensure the conservation 
and recovery of the hellbender on lands they manage, including active 
involvement in the Ozark Hellbender Working Group.
    In those circumstances where it has been determined that a Federal 
action (including actions involving non-Federal lands) may affect the 
hellbender, the action would be reviewed under section 7(a)(2) of the 
Act. We anticipate that the following Federal actions are some of the 
actions that could adversely impact the Ozark hellbender: Instream 
dredging, channelizing, impounding water, streambank clearing, moving 
large rocks within or from streams, discharging fill material into the 
stream, or discharging or dumping toxic chemicals or other pollutants 
into a hellbender stream system. Under section 7(a)(2) of the Act, 
project impacts would be analyzed and the Service would determine if 
the Federal action would jeopardize the continued existence of the 
hellbender. The designation of critical habitat would ensure that a 
Federal action would not result in the destruction or adverse 
modification of the designated critical habitat. Consultation with 
respect to critical habitat will provide additional protection to a 
species only if the agency action would result in the destruction or 
adverse modification of the critical habitat but would not jeopardize 
the continued existence of the species. In the absence of critical 
habitat, areas that support the Ozark hellbender will continue to be 
subject to conservation actions implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard, as appropriate. Federal actions affecting 
the hellbender even in the absence of designated critical habitat areas 
will still benefit from consultation pursuant to section 7(a)(2) of the 
Act and may still result in jeopardy findings.
    Another potential benefit to the Ozark hellbender from designating 
critical habitat is that such a designation serves to educate 
landowners, State and local governments, and the public regarding the 
potential conservation value of an area. Generally, providing this 
information helps focus and promote conservation efforts by other 
parties by clearly delineating areas of high conservation value for the 
affected species. Simply publicizing the proposed listing of the 
species also serves to notify and educate landowners, State and local 
governments, and the public regarding important conservation values. 
Furthermore, the Ozark Hellbender Working Group has developed a 
comprehensive outreach and education program that targets a diverse 
audience, including public and private landowners, organizations, and 
the media (Ozark Hellbender Working Group 2008, Outreach and Education 
Chapter).
    The Ozark Hellbender Working Group, formed in 2001, is composed of 
personnel from Federal and State agencies, academia, zoos, non-profit 
organizations, and private individuals. The Ozark hellbender outreach 
actions implemented to date include producing and distributing 
stickers, posters, and videos; publishing magazine articles; working 
with media outlets (newspaper and television) on hellbender stories; 
giving presentations to local County Commissioners and other community 
groups; providing a profile of the Ozark hellbender in the Missouri 
Department of Conservation's Fishing Regulations Pamphlet; and 
providing annual technical assistance to volunteers like the Missouri 
Department of Conservation's Stream Teams working in hellbender 
streams. In view of the extensive, ongoing efforts to outreach and 
promote Ozark hellbender conservation, we believe that the designation 
of critical habitat would provide limited additional outreach value.

Increased Threat to the Species Outweighs the Benefits of Critical 
Habitat Designation

    Upon reviewing the available information, we have determined that 
the designation of critical habitat would increase the threat to Ozark 
hellbenders from unauthorized collection and trade. We believe that the 
risk of increasing this significant threat by publishing location 
information in a critical habitat designation outweighs the benefits of 
designating critical habitat.
    A limited number of U.S. species listed under the Act have 
commercial value in trade. The Ozark hellbender would be one of them. 
Due to the market demand and willingness of individuals to collect 
hellbenders without authorization, we believe that any action that 
publicly discloses the location of hellbenders (such as critical

[[Page 54577]]

habitat) puts the species in further peril. The Ozark hellbender is 
critically imperiled, requiring a focused and comprehensive approach to 
reducing threats. Several measures are currently being implemented to 
address the threat of unauthorized collection and trade of hellbenders, 
and additional measures will be implemented if the species is listed 
under the Act. One of the basic measures to protect hellbenders from 
unauthorized collection and trade is restricting access to information 
pertaining to the location of Ozark hellbenders. Publishing maps and 
narrative descriptions of Ozark hellbender critical habitat would 
significantly affect our ability to reduce the threat of unauthorized 
collection and trade.
    Therefore, based on our determination that critical habitat 
designation would increase the degree of threats to the Ozark 
hellbender and, at best, provide nominal benefits for this taxon, we 
find that the increased threat to the Ozark hellbender from the 
designation of critical habitat significantly outweighs any benefit of 
designation.

Summary of Prudency Determination

    We have determined that the designation of critical habitat would 
increase unauthorized collection and trade threats to the Ozark 
hellbender. The Ozark hellbender is valued in the pet trade, and that 
value is likely to increase as the species becomes rarer. Critical 
habitat designation may provide some benefits to the conservation of 
the Ozark hellbender, for example, by identifying areas important for 
conservation. However, we have determined that the benefits of 
designating critical habitat for the Ozark hellbender are minimal. We 
have concluded that, even if some benefit from designation may exist, 
the increased threat to the species from unauthorized collection and 
trade outweighs any benefit to the taxon. A determination to not 
designate critical habitat also supports the measures taken by the 
States to control and restrict information on the locations of Ozark 
hellbenders and to no longer make location and survey information 
readily available to the public. We have, therefore, determined that it 
is not prudent to designate critical habitat for the Ozark hellbender.
Available Conservation Measures
    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition of the species and its 
status by the public, landowners, and other agencies; recovery actions; 
requirements for Federal protection; and prohibitions against certain 
practices. Recognition through listing results in public awareness of 
the conservation status of the species and encourages conservation 
actions by Federal and State governments, private agencies and groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and calls for recovery actions to be 
carried out. The protection required of Federal agencies and the 
prohibitions against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer informally with us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies, including the 
Service, to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of the species or 
to destroy or adversely modify its critical habitat if any has been 
designated. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency must enter into formal 
consultation with us.
    Federal agency actions that may require conference or consultation 
for the Ozark hellbender as described in the preceding paragraph 
include, but are not limited to: stream alterations, development of new 
waste water facilities that may impact water quality, stream bank 
clearing, timber harvesting, construction of recreational trails and 
facilities adjacent to streams, water withdrawal projects, pesticide 
registration and usage, agricultural assistance programs, mining, road 
and bridge construction, and Federal loan programs. Activities will 
trigger consultation under section 7 of the Act if they may affect the 
Ozark hellbender addressed in this rule.
    The listing of the Ozark hellbender would subsequently lead to 
development of a recovery plan for this species. A recovery plan 
establishes a framework for interested parties to coordinate activities 
and to cooperate with each other in conservation efforts. The plan will 
set recovery priorities, identify responsibilities, and estimate the 
costs of the tasks necessary to accomplish the priorities. It will also 
describe site-specific management actions necessary to conserve the 
Ozark hellbender. Additionally, under section 6 of the Act, we would be 
able to grant funds to the States of Missouri and Arkansas for 
management actions promoting the conservation of the Ozark hellbender.
    The Act and implementing regulations set forth a series of general 
prohibitions and exceptions that apply to all endangered and threatened 
wildlife. As such, these prohibitions would be applicable to the Ozark 
hellbender. The prohibitions, under 50 CFR 17.21 and 17.31, in part, 
make it illegal for any person subject to the jurisdiction of the 
United States to take (includes harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect; or to attempt any of these), 
import or export, deliver, receive, carry transport, or ship in 
interstate or foreign commerce in the course of commercial activity, or 
sell or offer for sale in interstate or foreign commerce any listed 
species. It also is illegal to possess, sell, deliver, carry, 
transport, or ship any such wildlife that has been taken illegally. 
Further, it is illegal for any person to attempt to commit, to solicit 
another person to commit, or to cause to be committed, any of these 
acts. Certain exceptions apply to our agents and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened and endangered wildlife under certain 
circumstances. We codified the regulations governing permits for 
endangered and threatened species at 50 CFR 17.22 and 17.32. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and for incidental take in the 
course of otherwise lawful activities.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify, to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act and associated 
regulations at 50 CFR 17.31. The intent of this policy is to increase 
public awareness of the effect of this proposed listing on proposed and 
ongoing activities within a species' range. We believe that the 
following activities are unlikely to result in a violation of section 9 
of the Act:
    (1) Activities authorized, funded, or carried out by Federal 
agencies, when such activities are conducted in accordance with an 
incidental take

[[Page 54578]]

statement issued by us under section 7 of the Act;
    (2) Any action carried out for scientific research or to enhance 
the propagation or survival of Ozark hellbenders that is conducted in 
accordance with the conditions of a 50 CFR 17.22 permit;
    (3) Any incidental take of Ozark hellbenders resulting from an 
otherwise lawful activity conducted in accordance with the conditions 
of an incidental take permit issued under 50 CFR 17.22. Non-Federal 
applicants may design a habitat conservation plan (HCP) for the species 
and apply for an incidental take permit. HCPs may be developed for 
listed species and are designed to minimize and mitigate impacts to the 
species to the maximum extent practicable.
    We believe the following activities would be likely to result in a 
violation of section 9; however, possible violations are not limited to 
these actions alone:
    (1) Unauthorized killing, collecting, handling, or harassing of 
individual Ozark hellbenders at any life stage;
    (2) Sale or offer for sale of any Ozark hellbender as well as 
delivering, receiving, carrying, transporting, or shipping any Ozark 
hellbender in interstate or foreign commerce and in the course of a 
commercial activity;
    (3) Unauthorized destruction or alteration of the species habitat 
(for example, instream dredging, channelizing, impounding of water, 
streambank clearing, removing large rocks from or flipping large rocks 
within streams, discharging fill material) that actually kills or 
injures individual Ozark hellbenders by significantly impairing their 
essential behavioral patterns, including breeding, feeding, or 
sheltering;
    (4) Violation of any discharge or water withdrawal permit within 
the species' occupied range that results in the death or injury of 
individual Ozark hellbenders by significantly impairing their essential 
behavioral patterns, including breeding, feeding, or sheltering; and
    (5) Discharge or dumping of toxic chemicals or other pollutants 
into waters supporting the species that actually kills or injures 
individual Ozark hellbenders by significantly impairing their essential 
behavioral patterns, including breeding, feeding, or sheltering.
    We will review other activities not identified above on a case-by-
case basis to determine whether they may be likely to result in a 
violation of section 9 of the Act. We do not consider these lists to be 
exhaustive and provide them as information to the public.
    You should direct questions regarding whether specific activities 
may constitute a future violation of section 9 of the Act to the Field 
Supervisor of the Service's Columbia Field office (see FOR FURTHER 
INFORMATION CONTACT section). You may request copies of the regulations 
regarding listed wildlife from and address questions about prohibitions 
and permits to the U.S. Fish and Wildlife Service, Ecological Services 
Division, Henry Whipple Federal Building, 1 Federal Drive, Fort 
Snelling, MN 55111; Phone 612-713-5350; Fax 612-713-5292).

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' that was 
published on July 1, 1994 (59 FR 34270), we will seek the expert 
opinion of at least three appropriate independent specialists regarding 
this proposed rule. The purpose of such review is to ensure listing 
decisions are based on scientifically sound data, assumptions, and 
analysis. We will send copies of this proposed rule to the peer 
reviewers immediately following publication in the Federal Register.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, our final decision may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication. Send your request to the address shown in the 
ADDRESSES section. We will schedule public hearings on this proposal, 
if any are requested, and announce the dates, times, and places of 
those hearings, as well as how to obtain reasonable accommodations, in 
the Federal Register and local newspapers at least 15 days before the 
first hearing.

Required Determinations

National Environmental Policy Act (NEPA)
    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a) of 
the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).
Clarity of Rule
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.
References Cited
    A list of the references used to develop this proposed rule is 
available upon request (see FOR FURTHER INFORMATION CONTACT section).

Authors

    The primary authors of this proposed rule are the staff members of 
the Columbia (Missouri) Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation
    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as follows:

PART 17-[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.11(h) by adding an entry for ``Hellbender, 
Ozark'' in alphabetical order under AMPHIBIANS to the List of 
Endangered and Threatened Wildlife as follows:

[[Page 54579]]

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species                                           Vertebrate
------------------------------------------------                   population where                                         Critical
                                                  Historic range     endangered or        Status         When listed        habitat       Special rules
         Common name            Scientific name                       threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
                                                               Amphibians
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hellbender, Ozark              Cryptobranchus    AR, MO            Entire            E                                  NA               NA
                                alleganiensis
                                bishopi
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: August 19, 2010.
Wendi Weber,
Acting Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-22249 Filed 9-7-10; 8:45 am]
BILLING CODE 4310-55-S