[Federal Register Volume 76, Number 194 (Thursday, October 6, 2011)]
[Rules and Regulations]
[Pages 61956-61978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25690]


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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; Endangered Status 
for the Ozark Hellbender Salamander

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status under the Endangered Species Act of 1973 (Act), as 
amended, for the Ozark Hellbender (Cryptobranchus alleganiensis 
bishopi), a subspecies found in northern Arkansas and southern 
Missouri. This final rule implements the Federal protections provided 
by the Act for this species. We have also determined that the 
designation of critical habitat for the Ozark Hellbender is not 
prudent. The final rule for the CITES Appendix III listing for the 
Ozark and Eastern Hellbender is being published concurrently in today's 
Federal Register.

DATES: This final rule is effective November 7, 2011.

ADDRESSES: The final rule is available on the Internet at http://www.regulations.gov and at the

[[Page 61957]]

Columbia Missouri Ecological Services Field Office. Comments and 
materials received, as well as supporting documentation used in the 
preparation of this rule, will be available for public inspection, by 
appointment, during normal business hours at: 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; 
facsimile: 573-234-2181.

FOR FURTHER INFORMATION CONTACT: Charles Scott, Field Supervisor, at 
the U.S. Fish and Wildlife Service, Columbia Missouri Ecological 
Services Field Office (see ADDRESSES section). If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    The Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 
1531 et seq.) is a law that was passed to prevent extinction of species 
by providing measures to help alleviate the loss of species and their 
habitats. Before a plant or animal species can receive the protection 
provided by the Act, it must first be added to the Federal Lists of 
Threatened and Endangered Wildlife and Plants; section 4 of the Act and 
its implementing regulations at 50 CFR part 424 set forth the 
procedures for adding species to these lists. We published a proposed 
rule (75 FR 54561) to list the Ozark Hellbender (Cryptobranchus 
alleganiensis bishopi) as endangered under the Endangered Species Act, 
as amended (Act; 16 U.S.C. 1531 et seq.) on September 8, 2010, with a 
60-day public comment period.

Previous Federal Action

    Federal actions for this species prior to September 8, 2010, are 
outlined in our proposed rule for this action (75 FR 54561). We 
implemented the Service's peer review process and opened a 60-day 
comment period to solicit scientific and commercial information on the 
species from all interested parties following publication of the 
proposed rule. Because collection for trade is considered a primary 
threat, we coordinated with our Division of Management Authority to 
develop, concurrent with that proposal, a proposal to list the Ozark 
Hellbender as well as the Eastern Hellbender in Appendix III of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (CITES) (75 FR 54579). The final rule for the CITES Appendix 
III listing is being published concurrently in today's Federal 
Register.

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 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. Based on the slight 
morphological and ecological variation within the genus Cryptobranchus, 
Dundee and Dundee (1965, pp. 369-370) determined subspecific status for 
Ozark and Eastern hellbenders as within the hellbender, C. 
alleganiensis complex sensu lato (which means, ``in the broad sense'' 
and is used when two subspecies are derived from a single species 
within a broader context). Subsequent genetic analyses by Merkle et al. 
(1977, pp. 550-552) and Shaffer and Breden (1989, pp. 1017-1022) 
supported the classification of the Ozark and Eastern hellbender as 
subspecies. In 1991 Collins (1991, pp. 42-43) attempted to revive the 
designation of C. bishopi, due to the lack of intergradation between 
the Eastern and Ozark Hellbenders, primarily a result of the taxa 
occurring in separate, nonoverlapping geographic areas (Dundee 1971, p. 
101.1). However, despite some phenotypic and genetic differences 
between Ozark and 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), the suggestion to elevate Ozark and 
Eastern hellbenders to species status was never accepted by other 
taxonomists (Crother et al. 2008, p. 15). We will continue to use the 
nomenclature C. a. bishopi for the Ozark Hellbender, which is the 
taxonomy 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.).

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, typically limestone or dolomite, and 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, pp. 92, 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

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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 52.9 [deg]F (11.6 [deg]C), 63.9 [deg]F (17.7 [deg]C), 
and 71.1 [deg]F (21.7 [deg]C) for individuals acclimatized to 
temperatures of 41 [deg]F (5 [deg]C), 59 [deg]F (15 [deg]C), and 77 
[deg]F (25 [deg]C), 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 90.9 [deg]F (32.7 [deg]C) at 41 [deg]F (5 [deg]C) 
acclimation, 91.2 [deg]F (32.9 [deg]C) at 59 [deg]F (15 [deg]C), and 
97.7 [deg]F (36.5 [deg]C) at 77[deg] F (25 [deg]C).
    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 at an age of 
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 at an age of 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, pp. 42, 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). Larvae and 
small individuals hide beneath small stones in gravel beds or under 
large rocks, similar to those occupied by adults (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, 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) 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, 
populations of Ozark Hellbenders are known to occur in the North Fork 
of the White River, the Eleven Point River, and the Current River.
    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, 155), and no populations appear to 
be stable.
    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 Ozark and Eastern Hellbenders 
in August 2006. Thirty workshop participants explored threats to 
hellbender populations and developed 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, pp. 8, 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 Ozark Hellbender records from the 
main stem of the White River. In 1997, an Ozark Hellbender was recorded 
in Baxter County, Arkansas (Irwin 2008a, 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 2008a, 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 potentially occupied 
hellbender habitat 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 Ozark Hellbender population. In 
1973, results of a mark-recapture study indicated that there were 
approximately 1,150 hellbenders within a 1.7-mile (mi) (2.7-kilometer 
(km)) reach of the North Fork in Ozark County, Missouri, with an 
estimated 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 estimated 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 measured 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 length 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 
that was censused in

[[Page 61959]]

1983 (Peterson et al. 1983, pp. 225-231) and that used 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 measuring between 15.7 and 19.7 in (400 and 
500 mm), and the average length was significantly greater than the 
average length of 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.
    As a way to compare relative abundance of hellbenders in the late 
1990s to historic numbers, Wheeler et al. (2003, pp.152-153) obtained 
raw data used in the Peterson et al. (1983) study to calculate numbers 
of individuals caught per day. Other Ozark Hellbender population 
studies not included in that conversion are converted here for further 
comparison of relative abundance between historic and more recent 
studies (Ziehmer and Johnson 1992, pp. 1-5). For comparison purposes, 
one search day is defined as 8 hours of searching by 3 people (or 24 
person-hours). However, converting person-hours to a search day metric 
may underestimate actual search effort and overestimate relative 
hellbender abundance as person-hours usually only include time spent in 
the water searching (as opposed to total number of hours spent on the 
river). It should also be noted that because search effort was not 
standardized among all studies, comparison of hellbender captures per 
search day is a general, rather than a quantitative, comparison. Using 
this metric for the North Fork, approximately 55 hellbenders were 
caught per search day in 1983 (Peterson et al. 1983, pp. 225-231). In 
1992, 60 hellbenders per search day were caught (Ziehmer and Johnson 
1992, p. 2), and in 1998, 17 hellbenders per search day were caught 
(Wheeler 2003, p. 153).
    Another comparison of Ozark Hellbenders captures between historic 
and recent years provides further evidence of a decline. A 16.2-mi (25-
km) section of stream in the North Fork (overlapping with some sites 
sampled in the previous studies) was surveyed during 1969-1979 and 
again during 2005-2006 (Nickerson and Briggler 2007, pp. 212-213). 
Between 1969 and 1979, researchers caught 8 to 12 hellbenders per hour 
(64 to 96 hellbenders per search day); whereas in 2005 and 2006 
researchers averaged 0.5 hellbenders per hour (4 hellbenders per search 
day) (Nickerson and Briggler 2007, p. 213).
    In 2006, hellbender experts estimated the current population in the 
North Fork to be 200 individuals (Briggler et al. 2007, p. 83). The 
North Fork had been considered the stronghold of the species in 
Missouri, and the populations inhabiting this river were considered 
stable by Ziehmer and Johnson (1992, p. 3) and LaClaire (1993, pp. 3-
4). However, the studies cited above indicate that these populations 
now appear to be experiencing declines similar to those in other 
streams. The collection of young individuals has become rare, 
indicating that there is little recruitment. Although Briggler (2011c, 
pers. comm.) occasionally found some younger hellbenders in this river 
during surveys between 2005 and 2010, no larvae have been found despite 
extensive effort. In species such as the hellbender, which are long 
lived and mature at a relatively late age, detecting declines related 
to insufficient recruitment can take many years, as recruitment under 
healthy population conditions is typically low (Nickerson and Mays 
1973a, p. 54). Based on the comparisons of relative abundance and lack 
of observed recruitment, it appears that a severe decline has occurred 
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 (1992, p. 2) expected to find Ozark Hellbenders in this stream 
during an initial survey, but none were captured or observed after 22 
person-hours (0.9 search days). This apparent absence of the species 
conflicted with previous 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) and confirmed the existence of a population in this tributary, at 
least through 1998. This population, however, is isolated from the 
other North Fork White River populations by the Norfork Reservoir, 
which could contribute to this population's apparent small size due to 
fragmentation of habitat. 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 
that were not surveyed in 1998. This population has been historically 
low and is not considered to be viable (Briggler 2008b, pers. comm.).
    Black River--There is one documented record of an Ozark Hellbender 
in the Black River above its confluence with the Strawberry River on 
the Independence-Jackson County line (Arkansas) in 1978 (Irwin 2008a, 
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 Ozark Hellbenders, 
although it may have been occupied before intensive agriculture was 
initiated in the area (Irwin 2008b, pers. comm.). The Black River is 
presumed to be part of the historical range of the subspecies, because 
Ozark 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. Ozark 
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), respectively). 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). Although 
other factors may be involved in the observed length differences, it 
has been hypothesized that Spring River populations are genetically 
distinct from other hellbender populations. This

[[Page 61960]]

speculation was upheld by the conclusions of a genetic study of the 
populations in the Spring, Current, and Eleven Point rivers (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 person-hours (11.7 hellbenders per search day) 
over a 6-month period (Trauth et al. 1992, pp. 84-85). 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 winter 2004, performing 74 hours of 
search effort and found only 12 Ozark Hellbenders (3.9 hellbenders per 
search day) (Hiler 2005, p. 186). Nine of these animals exhibited 
severe physical abnormalities and were removed from the river to be 
housed at the Mammoth Spring National Fish Hatchery but have since 
died. All nine have since died, however, possibly due to water quality 
issues at the hatchery or from health issues that were observed when 
they were captured (i.e., lesions, raw limbs). Arkansas State 
University researchers found four and one individual during 2005 and 
2006 surveys, respectively. Hellbenders have declined in this stream 
from unknown causes. Possible reasons for the decline include water 
quality degradation, aquatic vegetation encroachment, collection for 
scientific purposes, and illegal commercial collection (Irwin 2008b, 
pers. comm.). Experts estimated the population in the Spring River to 
be at most 10 individuals, considered the population in this river to 
be functionally extirpated, and considered there to be minimal 
possibility of this stream being reinhabited under present conditions 
because of the magnitude of habitat degradation (Briggler et al. 2007, 
p. 83; Irwin 2008b, 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 and reported that in 1978, 87 Ozark Hellbenders were 
captured in Oregon County, Missouri, over a 3-day period, yielding an 
average of 29 hellbenders per search day. From 1980 to 1982, 314 
hellbenders were captured in the same area in 9 collection days, 
yielding an average of 35 hellbenders per search day; hellbender body 
lengths over that period ranged from 4.7 to 17.8 in (119 to 451 mm) 
(Wheeler 1999, p. 10). 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). The average number of 
hellbenders captured per hour was 8.4 and 8.8 for the two sites 
sampled, or 67 and 70 hellbenders captured per search day (using the 
search day conversion method presented in the North Fork White River 
discussion). As noted previously, the abundance of hellbenders per 
search day is likely an overestimate, and may be better approximated as 
35-40 hellbenders per search day since the reported capture rates do 
not appear to be relative to the number of surveyors.
    In 1998, Wheeler (1999, p. 10) captured 36 Ozark Hellbenders over 4 
days from the same localities as Peterson et al. (1988, p. 292), for an 
average of nine hellbenders per search 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 localities in 
2005 by Peterson et al. (1988, p. 293) resulted in a total of 31 
hellbenders captured and yielded an average of 2.6 hellbenders captured 
per search day. Population declines and reduced recruitment in the 
Eleven Point River in Missouri are indicated by the results of survey 
data (Briggler 2011b, pers. comm.), although hellbenders are 
consistently reported during surveys in the Eleven Point River in 
Arkansas (Irwin 2011a, pers. comm.).
    Recently in Arkansas (2005 and 2007), however, no more than two or 
three individuals were caught per search day. Specifically, the catch 
per person-hour in 2005 was 1.1 hellbenders and in 2007 the capture 
rate was 0.9 hellbenders per person-hour for surveys conducted on the 
Eleven Point River in Arkansas (Irwin 2008a, pers. comm.). In 2006, 
hellbender experts 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 was not surveyed extensively until 
the 1990s. Nickerson and Mays (1973a, p. 63) reported a large Ozark 
Hellbender population in this stream, but no numbers were recorded. In 
1992, Ziehmer and Johnson (1992, p. 2) found 12 hellbenders in 60 
person-hours in Shannon County, Missouri, or approximately 5 
hellbenders per search day (using the same search day conversion as 
presented in the North Fork White River discussion). 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 search day), also in 
Shannon County, Missouri, and the individuals ranged from 14.8 to 20.3 
in (375 to 515 mm) in length, 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), and the reported increase in length 
suggests that recruitment may be absent in this population. In 2005 and 
2006, researchers found 22 hellbenders throughout the Current River in 
100 hours of searching (equivalent to 5.2 hellbenders per search 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 
initially surveyed for Ozark Hellbenders in 1992 (Ziehmer and Johnson 
1992, p. 2). Four hellbenders were collected over 66 person-hours, 
equating to roughly 1.5 hellbenders per search day. The individuals 
were large, ranging from 13.0 to 16.9 in (330 to 430 mm) in length. No 
hellbenders were found during investigations of Jacks Fork in 2003 nor 
were any found in 2006 during 7 person-hours of searching (Phillips 
2010, pers. comm.).

Summary of Comments and Recommendations

    In the proposed rule published on September 8, 2010 (75 FR 54561), 
we requested that all interested parties submit written comments on the 
proposal by November 8, 2010. We also contacted appropriate Federal, 
State, and local agencies; scientific experts; and other interested 
parties and invited them to comment on the proposal. Newspaper notices 
inviting general comments were published in the West Plains Daily Quill 
(West Plains, Missouri), The Times Dispatch (Walnut Ridge, Arkansas), 
and The News-Leader (Springfield, Missouri). We did not receive any 
requests for a public hearing.
    Between October 21, 2010, and October 28, 2010, the Service 
received five requests to extend the public

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comment period for an additional 90 days. The reasons for requesting an 
extension centered on the Service's proposed determination that it was 
not prudent to designate critical habitat for the Ozark Hellbender. 
While the requests cited complexities of the issues involved and 
concerns regarding the water quality in the streams as the basis for an 
extension, no new information was provided that was not already 
outlined in the proposed rule. Therefore, we did not extend the public 
comment period and further delay the listing. We did, however, host a 
conference call with the requesters to provide information and answer 
questions regarding the Service's proposal.
    We received 65 written comments, including comments from 3 peer 
reviewers. Fifty-seven comments supported the proposed listing; while 
six comments expressed neither support for, nor opposition to, the 
proposal. Eight comments supported a ``similarity of appearance'' 
listing for the Eastern Hellbender, with three commenters also 
supporting a separate listing for the Eastern Hellbender.
    We reviewed all comments we received from the public and peer 
reviewers for substantive issues and new information regarding the 
listing of the Ozark Hellbender. All substantive information provided 
during the comment period has either been incorporated into this final 
determination or is addressed below.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from three individuals with 
scientific expertise that included familiarity with the species and its 
habitat, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from all three 
peer reviewers from whom we requested comments. The peer reviewers 
generally agreed that the description of the biology and habitat for 
the species was accurate and based on the best available information. 
Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate. New and additional 
information on the biology of the species and its threats was provided 
and incorporated into the rulemaking as appropriate. In some cases, it 
has been indicated in the citations by ``personal communication'' 
(pers. comm.); while in other cases, the research citation is provided.

Peer Reviewer Comments

    (1) Comment: In the proposed listing, the Service states that 
Dundee and Dundee (1965) recommended changing the taxonomic status of 
the Ozark Hellbender from species to subspecies due to the small amount 
of genetic variation between Ozark and Eastern Hellbenders. Dundee and 
Dundee (1965) recommended changing the taxonomic status based on 
morphology and ecology, not genetic variation.
    Our Response: We corrected this statement and clarified the 
remaining section on taxonomy to reflect that subsequent genetic 
analyses further supported the subspecies designation by Dundee and 
Dundee (1965).
    (2) Comment: The pathogen Batrachochytrium dendrobatidis has now 
been confirmed in all continents, including Asia (Goka et al. 2009).
    Our Response: We reviewed the reference provided by the peer 
reviewer and have made the correction in this final rule to reflect the 
entire range of this pathogen.
    (3) Comment: Two peer reviewers provided comments regarding the 
reference in the proposed rule to Pfingsten's (1990) caution that the 
failure to detect larvae could be interpreted to mean that larvae could 
occur in areas not surveyed. One peer reviewer relayed that two Eastern 
Hellbender larvae had been captured in Ohio in habitat similar to that 
occupied by adults. The peer reviewer also commented that a 
``retrospective'' analysis of the data collected by Pfingsten for 
Eastern Hellbender populations in Ohio provides strong evidence that 
the lack of detection of a younger size class (i.e. larvae) was due to 
the lack of recruitment in most Ohio populations rather than 
Pfingsten's failure to survey sites occupied by larvae (Lipps 2010, 
pers. comm.). The peer reviewer suggested that a similar situation or 
phenomenon was likely responsible for the lack of recruitment in Ozark 
Hellbender populations (Lipps 2010, pers. comm.). A second peer 
reviewer provided two arguments supporting the explanation that lack of 
larvae detection in surveys is due to an actual lack of recruitment and 
not survey technique. He noted that researchers have searched in 
several microhabitats (for example, gravel beds, smaller tributaries) 
in excess of 100 person-hours without detecting the presence of larvae, 
and that others have found larvae and juveniles of the Eastern 
Hellbender in the same microhabitats as adults.
    Our Response: We concur that the inability to detect larval and 
juvenile hellbenders is not solely a function of survey technique but 
most likely reflects an actual reduction or lack of recruitment in the 
populations. Information provided by the peer reviewers and other 
supporting references have been incorporated into this final rule.
    (4) Comment: The Service should consider listing pesticides as a 
potential direct threat to the Ozark Hellbender. The peer reviewer 
supports this recommendation with several references, including 
statements in the proposed rule indicating that hellbenders would be 
vulnerable to multiple chemicals. The peer reviewer also states that 
pesticide registration and usage is listed as a potential Federal 
agency action that may require conference or consultation under 
Available Conservation Measures.
    Our Response: In testing water samples collected from the North 
Fork, White, and Eleven Point rivers from 2003-2004, Solis et al. 
(2007; pp. 430,432) detected only two pesticides: metolachlor and 
tebuthiuron. Median concentrations of both chemicals were lower than 
median concentrations detected from 1992-1995 at various sites 
throughout the Ozark Plateau (Petersen et al. 1998; p. 24). Metolachlor 
and tebuthiuron concentrations in 2003-2004 were also lower than the 
Environmental Protection Agency (EPA) aquatic life benchmarks for the 
protection of aquatic species (U.S. EPA 2011). Atrazine, which can 
interfere with normal gonadal development and adversely affect 
fertility (PARC 2007), was not detected in water samples collected 
during 2003 and 2004 (Solis et al. 2007; pp. 430, 432). While it is 
possible that atrazine may be present at concentrations below 
detectable limits and thus potentially affect hellbenders, available 
data do not support the recommendation that pesticides are a direct 
threat.
    (5) Comment: The Service states in the proposed rule that predation 
by introduced trout cannot be ruled out as a factor affecting the Ozark 
Hellbender and that it possibly contributes to the observed population 
declines. However, nonnative fish stocking is not included in the 
actions that would be reviewable under section 7(a)(2) of the Act or 
under actions that may require consultation with the Service. The 
Service should clarify if they lack the authority to review fish 
stocking in Ozark Hellbender habitat or explain why this action is not 
included.
    Our Response: Section 7(a)(2) of the Act requires that each Federal 
agency insure that any action they authorize, fund, or carry out is not 
likely to

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jeopardize the continued existence of any endangered or threatened 
species or result in the destruction or adverse modification of 
critical habitat of such species. If an agency receives Federal funding 
for stocking nonnative fish (such as from the Service's Wildlife and 
Sport Fish Restoration Program), or if this action is authorized by a 
Federal agency, the Service would work closely with our partners during 
the section 7(a)(2) consultation process to assess impacts to Ozark 
Hellbenders and avoid or minimize these impacts. In the proposed rule 
we provided a limited list of agency actions that may require 
conference or consultation for the Ozark Hellbender (see Available 
Conservation Measures). We have modified the list to also include 
federally funded activities. Because federally funded or authorized 
activities can include numerous actions, we did not provide a 
comprehensive list of all actions that may require section 7 
consultation.
    (6) Comment: One reviewer interpreted the Service's ``not prudent'' 
finding to indicate that the Service has determined that sections 
7(a)(1) and 7(a)(2) of the Act can sufficiently contribute to the 
conservation and recovery of the Ozark Hellbender without protecting 
areas outside the geographical area occupied at the time of listing 
(through designation of critical habitat). The reviewer requested that 
the Service explain how we will protect areas outside the currently 
occupied locations if those areas are considered essential to the 
recovery of the species and critical habitat is not designated.
    Our Response: As detailed under Benefits to the Species from 
Critical Habitat Designation, the Service recognizes that in some 
instances the designation of critical habitat can provide additional 
protection beyond that which is already provided through the section 
7(a)(2) consultation process (see response to Comment 13a for 
additional information). One of these benefits is the protection of 
unoccupied habitat considered essential to the recovery of the species. 
It is necessary, however, to weigh this benefit against the increased 
threat of illegal collection to the taxa by designating critical 
habitat. In doing so, the Service believes that the conservation and 
recovery of Ozark Hellbenders can best be achieved by preventing the 
illegal removal of animals from the populations, a threat directly 
resulting from the publication of critical habitat maps and disclosure 
of specific locations of occupied sites.
    (7) Comment: The Service includes ``flipping large rocks within 
streams'' as an action likely to result in violation of section 9 of 
the Act. Moving shelter rocks used by hellbenders, even when returned 
to their original side down, may make the space beneath the rock 
unsuitable for hellbenders (personal observation by peer reviewer). 
Despite taking great effort to return rocks to their original 
positions, disturbing the ``seal'' of sedimentation around hellbender 
shelter rocks may result in the space being abandoned by hellbenders 
and becoming occupied by rock bass and other fish, thereby reducing the 
amount of suitable habitat available for hellbenders (Horchler 2010, p. 
20). The Service should replace the word ``flipping'' with 
``disturbing.'' Furthermore, under 50 CFR 17.21 and 17.31, it is 
illegal to pursue or attempt to pursue an endangered species and this 
language should be included in the list of likely violations of section 
9.
    Our Response: Manipulation of shelter rocks to locate or capture 
hellbenders would in most cases be in the form of flipping 
(overturning) rocks. However, within the context of unauthorized 
destruction or alteration of hellbender habitat (for reasons other than 
to locate hellbenders), the microhabitat under or around the rock may 
be altered by disturbances other than just flipping. Therefore, we have 
replaced the word ``flipping'' with ``disturbing.'' In response to the 
second part of the peer reviewer's comment, in this final rule, we have 
specifically identified ``pursuing, or attempting to pursue'' within 
those actions likely to result in a violation of section 9.
    (8) Comment: One reviewer noted that many of the factors 
potentially contributing to hellbender declines may be operating 
synergistically to reduce survival. The reviewer provides the following 
examples: (1) Higher water temperatures due to siltation may lead to an 
environment favorable for pathogens; (2) poor water quality could 
contribute to lowered immune capabilities of hellbenders and make them 
more susceptible to infection from pathogens; and (3) reduced body 
condition due to water quality issues or pathogen infection could 
result in individuals becoming more vulnerable to predation (similar 
linkages with pesticides have been shown in other aquatic amphibians).
    Our Response: Although we lack definitive data to support this 
assertion, it is likely that effects of some factors may enhance the 
effects of other impacts. Because this interaction could further 
contribute to the Ozark Hellbender's decline, we have referenced 
synergistic effects and cumulative effects under Factor E (Other 
Natural or Manmade Factors Affecting Its Continued Existence).

Public Comments

    (9) Comment: Several commenters provided supporting data and 
information regarding the biology, ecology, life history, population 
estimates, threat factors affecting the Ozark Hellbender, and current 
conservation efforts.
    Our Response: We thank all of the commenters for their interest in 
the conservation of this species and thank those commenters who 
provided information for our consideration in making this listing 
determination. Much of the information submitted was duplicative of 
information contained in the proposed rule; however, some comments 
contained information that provided additional clarity or support to, 
but did not substantially change, information already contained in the 
proposed rule. This information has been incorporated into this final 
rule, where appropriate.
    (10) Comment: There was no mention in the proposed rule of other 
emerging bacterial and viral infections which may cause significant 
mortality and contribute rangewide to the decline of Ozark Hellbenders. 
To support this concern, the commenter noted that a flesh-eating 
bacterium (Citrobacter sp.) had been identified on an Ozark Hellbender 
in Missouri, and that symptoms present on the Missouri specimen are 
present on the majority of hellbenders captured in Arkansas. The 
commenter also stated that animals infected with Batrachochytrium 
dendrobatidis (the pathogen which causes amphibian chytrid fungus) may 
become immunosuppressed and thus more susceptible to these secondary 
infections.
    Our Response: During the development of the proposed rule, factors 
causing the severe abnormalities observed in Ozark Hellbenders were 
unknown. Since that time, personnel from the Saint Louis Zoo and other 
hellbender experts have postulated that the abnormalities are likely 
caused by secondary bacterial and fungal infections (Briggler 2011a, 
pers. comm.). Therefore, we have incorporated this information into 
this final rule under Factor C (Disease or Predation). Although 
evidence is lacking to conclude that Batrachochytrium dendrobatidis 
(Bd) suppresses the immune response of animals (and thereby increases 
their vulnerability to secondary infections), we believe that Bd may be 
contributing to some of the abnormalities exhibited by hellbenders. Not 
all hellbenders with abnormalities, such as lesions and appendage loss, 
however, test positive for infection with

[[Page 61963]]

Bd (Briggler 2011a, pers. comm.). Therefore, we believe there are 
factors other than amphibian chytrid fungus that cause increased 
vulnerability of hellbenders to secondary infections and result in 
abnormalities.
    (11) Comment: The Service needs to further investigate the threat 
of trout to larval hellbenders.
    Our Response: Concern regarding the potential effect of nonnative 
trout was expressed by multiple commenters. Because nonnative trout are 
stocked in all rivers that historically and currently contain 
hellbenders, and because data from Gall (2008, pp. 48-49) indicate that 
larval Ozark Hellbenders do not recognize trout as predators, we agree 
that this topic warrants further investigation. Future conservation and 
recovery efforts for the Ozark Hellbender will include identifying and 
implementing research projects that will address the role of nonnative 
trout as a potential factor contributing to the decline of this 
subspecies. Should results from research studies indicate that 
nonnative trout are a threat to Ozark Hellbender populations, the 
Service will work with the States to avoid or minimize these effects.
    (12) Comment: Several commenters concurred with the Service's 
decision not to designate critical habitat, citing the threat posed by 
illegal collection and the pet trade. However, 12 commenters expressed 
opposition to the Service's proposed determination not to designate 
critical habitat for the Ozark Hellbender. These comments generally 
centered on five main topics and are addressed individually below.
    (12a) Comment: The Service cannot protect the Ozark Hellbender 
without designating critical habitat.
    Our Response: Listed species and their habitat are protected by the 
Endangered Species Act whether or not they are in an area designated as 
critical habitat. To understand the additional protection that critical 
habitat may provide to an area, it is necessary to understand the 
protection afforded to any endangered or threatened species, even if 
critical habitat is not designated. Section 7(a)(2) of the Act requires 
Federal agencies to consult with the Service to ensure that any action 
they authorize, fund, or carry out is not likely to jeopardize the 
continued existence of any listed species or result in the destruction 
or adverse modification of critical habitat (referred to as the 
consultation process). In consultations for species with critical 
habitat, Federal agencies are required to ensure that their activities 
do not destroy or adversely modify critical habitat. In most instances, 
particularly in occupied habitat, the species protection benefits 
provided by the designation of critical habitat largely duplicate those 
already provided to the species without the designation of critical 
habitat by the ``jeopardy standard.'' This is because when the Service 
evaluates the impacts of activities, we also look at impacts to the 
species habitat. Despite this overlap, the Service recognizes that, in 
some instances, designation of critical habitat could provide some 
benefits to the Ozark Hellbender (as described under Benefits to the 
Species from Critical Habitat Designation). These benefits, however, do 
not outweigh the increased illegal collection that will likely occur if 
critical habitat maps are published and the specific locations of 
currently occupied sites are disclosed (see discussion under Increased 
Threat to the Species Outweighs the Benefits of Critical Habitat 
Designation).
    (12b) Comment: Multiple commenters questioned the degree of threat 
posed by illegal collection and believed that the publication of 
critical habitat maps would not increase the risk of unauthorized 
collection.
    Our Response: Although the black market for smuggling and illegally 
selling protected reptiles and amphibians is widely recognized by 
herpetofauna experts and law enforcement officials, we realize that it 
may be necessary to provide additional information to support our 
concern. Therefore, we provided instances in this final rule under 
Factor B (Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes) to further evidence the threat of illegal 
collection, including: (1) A testimonial from an individual who 
collected more than 100 Ozark Hellbenders from the North Fork of the 
White River in the 1980s to sell for the pet trade; (2) the citation of 
two individuals in 1985 by Missouri Department of Conservation Agents 
for illegally collecting Ozark Hellbenders; (3) information referencing 
the unauthorized removal of more than 100 Ozark Hellbenders from the 
Spring River in the 1980s, and (4) recent information demonstrating 
that a demand for hellbenders still exists.
    Because Ozark Hellbenders are not uniformly distributed throughout 
streams in which they occur, collecting is often focused on a known 
source or site, thereby threatening extirpation of subpopulations at 
the site. Publication of critical habitat maps would disclose these 
sites and facilitate removal by collectors.
    (12c) Comment: Because only adult hellbenders are subject to 
illegal collection and larval hellbenders occupy separate habitats from 
adults, designating critical habitat for all life stages will not 
increase the threat of illegal collection.
    Our Response: The Service is unaware of any reasons for which 
nonadult Ozark Hellbenders would not be subject to illegal collection 
or of any information supporting this assertion. The contention that 
hellbender larvae drift downstream with the current and occupy 
different habitats than adults was expressed by several commenters who 
opposed the Service's proposed determination that designating critical 
habitat for this species is not prudent. We are not aware of 
information indicating that larval hellbenders drift downstream or that 
they occupy separate habitats from adults. On the contrary, the best 
available information indicates that, while larval hellbenders may 
occupy different microhabitats than adults (interstices of gravel 
rather than large cover rocks), larvae occupy the same stream reach 
segments as adults (Bishop 1941, pp. 48, 52; Nickerson and Mays 1973a, 
p. 12; Nickerson et al. 2003, pp. 624-625, 627; Briggler 2010c, pers. 
comm.; Horchler 2010, pers. comm.; Lipps 2010, pers. comm.; Phillips 
2010, pers. comm.). Therefore, designating critical habitat for all 
hellbender life stages would not prevent unauthorized collecting.
    (12d) Comment: The locations of hellbender sites are already 
available to the public; therefore, publishing critical habitat maps 
would not increase the threat of illegal collection.
    Our Response: Information currently available to the public is 
limited and reveals only a small proportion of the total number of 
sites occupied by Ozark Hellbenders. The designation of critical 
habitat would result in publishing in the Federal Register precise 
information about the species and its habitat requirements, where it is 
found, and maps with geographic coordinates for all occupied locations. 
The Service is already aware of instances in which the publication of 
locality information for occupied sites resulted in the removal of 
almost all individuals from the location. Thus, publishing locations of 
the remaining occupied sites would only further facilitate illegal 
collection.
    (12e) Comment: The habitat of the Ozark Hellbender does not 
comprise discrete points along the streams, but rather its habitat 
comprises stream reaches. Therefore, the Service can avoid disclosing 
exact locations to the public by designating large segments as critical 
habitat in streams occupied by Ozark Hellbenders. One commenter further 
noted that the Service has

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designated large stream reaches for the Niangua darter and the Topeka 
shiner.
    Our Response: When designating critical habitat, the Service must 
determine--based on the best available scientific information--the 
physical and biological features that are essential to the conservation 
of a species and which may require special management considerations or 
protection. Essential physical and biological features are specific 
habitat components that enable a species to fulfill its life cycle 
needs. Appropriate cover rocks or other crevices are necessary features 
to fulfill the life cycle needs of the Ozark Hellbender because they 
provide protection and nesting habitat. However, unlike the habitat for 
Niangua darters and the Topeka shiner, stream reaches containing 
suitable habitat for the Ozark Hellbender are not continuous. Areas 
with suitable habitat typically range from 100 to 400 yards (91 to 366 
meters (m)) in length, and subpopulations within each river system are 
often separated by miles (kilometers) of unsuitable habitat (data from 
mark-recapture studies indicate that hellbenders rarely move between 
sites (Irwin 2009, pers. comm., Briggler 2010b, pers. comm.)). 
Therefore, by mapping the critical habitat and describing the physical 
and biological features essential to the conservation of the species, 
the Service would disclose the specific location of occupied sites and 
subject the hellbenders to collection.
    (13) Comment: It is our understanding that the Saint Louis Zoo is 
currently engaged in propagation efforts and that the Missouri 
Department of Conservation plans to release captive-reared hellbenders 
into the Eleven Point River. This effort only addresses the Eleven 
Point River and not the Current River or the North Fork of the White 
River. In addition, we are concerned that these augmentation efforts 
will not be successful.
    Our Response: Results from genetic studies (Crowhurst et al. 2011; 
pp. 640-643; Sabatino and Routman 2009; pp. 1239-1240, 1244) indicate 
that mixing Ozark Hellbenders among rivers could cause an outbreeding 
depression, or the reduction in fitness of offspring because of the 
genetic differences between parents. For this reason, it is unlikely 
that captive-reared individuals will be released into rivers other than 
those from which the eggs were collected. To date, the Missouri 
Department of Conservation has collected Ozark Hellbender eggs from the 
North Fork White River and the Eleven Point River, but has been unable 
to locate eggs from the Current River. Therefore, releases of captive-
reared individuals are planned only for those rivers from which eggs 
have been collected (North Fork White River and Eleven Point River). 
Specific areas where augmentation or reintroductions will occur, 
however, have yet to be identified. Such propagation efforts will be 
identified in the development of a future approved Federal recovery 
plan for the species that will be developed through cooperative 
partnerships with the Ozark Hellbender Work Group and other potentially 
affected Federal, State, and private entities.
    Regarding the predicted success of propagation efforts, the Service 
believes that captive propagation efforts will likely be necessary to 
conserve and recover the Ozark Hellbender, until causes for the lack of 
recruitment in the wild can be definitively identified and addressed. 
When eggs are collected in the wild, larvae can be hatched and reared 
at significantly higher survivorship rates than those estimated from 
the wild. When individuals are reared to larger sizes and then 
released, substantially more hellbenders can survive to maturity and 
contribute to the population.

Summary of Changes From Proposed Rule

    We fully considered comments from the public and peer reviewers on 
the proposed rule to develop this final listing of the Ozark 
Hellbender. This final rule incorporates changes to our proposed 
listing based on comments received that are discussed above and on 
newly available scientific and commercial information. Reviewers 
generally commented that the proposed rule was thorough and 
comprehensive. We made some technical corrections based on new, 
although limited, information. Based on comments we received during the 
public comment period, we also included additional information to 
provide further evidence of the threat of illegal collection. 
Information received supports the Service's decision to list the Ozark 
Hellbender as endangered.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for adding species to the Federal Lists 
of Endangered and Threatened Wildlife and Plants. 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) of the Act: (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. Listing actions may 
be warranted based on any of the above threat factors, singly or in 
combination. Each of these factors is discussed below.

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). Both hellbender subspecies 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 likely 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. 97-98, 323-324). 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 downstream of the impoundments and effectively 
isolated Ozark Hellbender populations. Norfork Dam was constructed on 
the North Fork in 1944 and has isolated Ozark

[[Page 61965]]

Hellbender populations in Bryant Creek from those in the North Fork. 
Furthermore, 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 typically has reduced oxygen 
levels because it is noncirculating or does not ``turn over'' to the 
surface. The tailwater zones below dams also experience extreme water 
level fluctuations and scouring for several miles downstream. This can 
impact hellbender populations by washing out the pebbles and cobbles 
used as cover by juveniles and by creating unpredictable habitat 
conditions outside the Ozark Hellbender's normal range of tolerance.
    Impoundments can also affect hellbender habitat upstream by 
increasing sedimentation during periods of heavy rain because the flow 
of water is impeded by the presence of the reservoir. In 2008 and 2011, 
heavy rains and flooding resulted in an increase in water levels in 
excess of 10 to 15 feet (ft) (3 to 5 meters (m)) and significantly 
reduced flow velocity (Briggler 2011d, pers. comm.; Crabill 2011b, 
pers. obs.). Deposition of gravel from the 2008 flood event removed an 
estimated 30 percent of the available cover rocks and habitat at one of 
the most abundant Ozark Hellbender sites; while flooding in 2011 
removed an additional 50 percent of the habitat at this site (Briggler 
2011d, pers. comm.). During high water levels, Ozark Hellbenders at 
sites upstream of the reservoirs are also exposed to increased 
predation pressure by large predatory fishes. The increased water 
levels allow fish to expand upstream of the reservoir and have been 
observed in large numbers at upstream Ozark Hellbender sites (Roberts 
2011, pers. comm.). The increased abundance of large predatory fish, 
such as brown trout and striped bass, at sites upstream of Norfork 
Reservoir has even been noted by private landowners near these sites 
(Anon. 2010, pers. comm.).
Mining
    Gravel mining, which continues to occur in a number of streams 
within the range of the Ozark Hellbender, has directly contributed to 
Ozark Hellbender habitat alteration and loss. Gravel mining, also 
referred to as 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 (Allan and Castillo 
2007, p. 331). Reaches downstream of the dredged stream reach often 
experience aggradation (raised stream bed from sediment build up) 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, prey, dissolved 
oxygen for egg development). In addition, these effects reduce crayfish 
populations, which are the primary prey species for Ozark Hellbenders. 
Because noncommercial gravel mining is not regulated by the States or 
by the U.S. Army Corps of Engineers, it is difficult to determine the 
extent of gravel mining within southern Missouri and northern Arkansas. 
However, an aerial survey conducted in 2001 reported an estimated 12 
and 41 active mining sites in the North Fork of the White River and 
Current River watersheds, respectively (no data were reported for 
watersheds of the Eleven Point or Spring rivers) (Noell 2003, p. 7).
    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, although at levels that are lower than those 
recorded historically. 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. (1998, p. 12) determined that 
elevated concentrations of lead and zinc were still present in the 
streams where mining occurred historically. 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 
more than 10 years ago in these rivers would remain at similar 
concentrations 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, Missouri (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 
migrated to Blue Spring. However, if the Sweetwater Mine's current 
tailings dam on Adair Creek were to fail, large concentrations of lead 
and zinc would be added to Blue Spring and the Current River (Mosby 
2008, pers. comm.). Although not common, failures of tailings mines 
have occurred on six occasions in Missouri since 1940, with several 
releasing tailings into nearby drainages or creeks (USCOLD 1994, pp. 
99-144).
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 and 
Salem plateaus of southern Missouri. Water in the Ozark Plateaus 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 (Petersen et al. 1998, p. 6). This contamination was 
evidenced when water samples from the North Fork White and Eleven Point 
rivers in 2003-2004 contained concentrations of total phosphorus and 
total nitrogen exceeding the U.S. Environmental Protection Agency (EPA) 
recommended criteria two-thirds of the time (Solis et al. 2007, pp. 
430-431). Agricultural land and livestock production comprises a large 
percentage of the land use within the Ozark Hellbender range and is a 
continuing source of contamination (Wheeler et al. 2003, p. 155). 
Missouri is the second largest beef

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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 National Water-Quality Assessment data 
collected in the Ozarks in 1992-1995 from wells and springs indicated 
that nitrate concentrations were strongly associated with the 
percentage of mostly agricultural land near the wells or springs 
(Petersen et al. 1998, p. 8).
    Although nitrogen and phosphorus are essential plant nutrients that 
are found naturally in streams, elevated concentrations of these 
nutrients can cause increased growth of algae and aquatic plants in 
many streams and are detrimental to aquatic biota (Petersen et al. 
1998, p. 6). Increased levels of nitrates (nitrate is a compound of 
nitrogen and oxygen and usually the most abundant form of nitrogen in 
the water) can also affect amphibians by inhibiting growth, decreasing 
survivability, and impairing their immune systems (Marco et al. 1999, 
p. 2837; Rouse et al. 1999, p. 801; Ortiz et al. 2004, pp. 235-236; 
Earl and Whiteman 2009, 1334-1335).
    Increased recreational use (such as from canoeing, kayaking, 
rafting, inner tube floating, and small horsepower motor boating) also 
impacts the water and habitat quality in rivers inhabited by the Ozark 
Hellbender. From 2003 to 2008, the Missouri Department of Natural 
Resources included an 8-mi (13-km) stretch of the Jacks Fork River in 
the U.S. EPA's 303(d) list of impaired waters not meeting water quality 
standards 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 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 
estrogenic compounds that have been demonstrated to adversely impact 
aquatic organisms, although concentrations were lower than those shown 
to adversely affect aquatic organisms (Solis et al. 2007, p. 430). 
Nevertheless, this evidence indicates that hellbenders in the North 
Fork White and Eleven Point Rivers in Missouri are exposed to a variety 
of organic chemicals with potential estrogenic activity, and the total 
effect of these chemicals remains unknown. 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 recharge area for 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 can further facilitate the 
transport of potential contaminants.
Siltation
    Sediment inputs from land use activities have contributed to, and 
continue to contribute to, habitat degradation. Hellbenders are 
intolerant of sedimentation and turbidity (Nickerson and Mays 1973a, 
pp. 55-56), which can impact them in several ways:
    (1) Sediment deposition on 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, pp. 19, 25).
    (3) Suspended sediment loads can cause water temperatures to 
increase, and cause 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 can 
allow direct exposure 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).
    In addition to those constructed for timber harvest, other roads 
which are improperly designed and maintained can cause marginally 
stable slopes to fail, and also capture surface runoff and channel it 
directly into streams (Allan and Castillo 2007, pp. 321-322, 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 
2008b, pers. comm.).
Disturbance
    Habitat disturbance affects hellbender survival in multiple rivers. 
Most rivers and streams inhabited by hellbenders are extremely popular 
with canoeists, kayakers, rafters, inner tube floaters, or operators of 
low-horsepower motorboats. 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.). Hellbenders 
encountered with gashes in their heads suggest that watercraft traffic 
likely impacts 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 displacing or disrupting cover rocks. 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;

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Wheeler et al. 1999, p. 4). It has been reported that rocks are 
possibly removed from streams for home landscaping projects (Briggler 
et al. 2007, p. 62), although data to support this assertion is 
lacking. Rock turning and flipping is also done by crayfish hunters, 
herpetofauna enthusiasts, and researchers (Briggler et al. 2007, pp. 61 
and 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.
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 both upstream and downstream habitat 
directly, isolate populations, change water temperatures and flows 
below reservoirs, and increase exposure to predatory fish immediately 
upstream of the impoundments. 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. Siltation and water quality degradation are caused by 
human and livestock wastes, agricultural runoff, mine waste, and 
activities related to timber harvesting. Increased siltation may affect 
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, along with other contaminants 
from agricultural runoff and increased urbanization, have been detected 
in hellbender streams. These contaminants not only pose a threat 
directly to the Ozark Hellbender but also to the aquatic ecosystems 
upon which this species depends.
    Pressure from recreational uses (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, herpetofauna enthusiasts, and independent researchers 
(without scientific permits) 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 and other information indicate that Ozark 
Hellbenders have been collected for commercial and scientific purposes 
(Trauth et al. 1992, p. 85; Nickerson and Briggler 2007, pp. 208-209). 
Although commercial collecting of Ozark Hellbenders has never been 
permitted by the Arkansas Game and Fish Commission (Irwin 2011b, pers. 
comm.) nor by the Missouri Department of Conservation (Briggler 2011a, 
pers. comm.), Nickerson and Briggler (2007, pp. 207-212) determined 
that large numbers of Ozark Hellbenders have been 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 also 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 2008b, pers. comm.). Missouri imposed a moratorium on hellbender 
scientific collecting from 1991 to 1996 and has since issued only 
limited numbers of scientific collecting permits for research (Horner 
2008, pers. comm.). Despite these restrictions, unauthorized collecting 
for the pet trade remains a threat throughout the range because of the 
willingness of individuals to collect hellbenders illegally (Briggler 
2011a, 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. At least 100 of these were 
collected in the mid-1980s by individuals from Alabama (Figg 1992, 
pers. comm.). One of these collectors contacted the Missouri Department 
of Conservation in 1992 out of remorse and provided details about 
collecting the hellbenders (Figg 1992, pers. comm.). According to the 
individual, animals were exported to Japan and labeled as Eastern 
Hellbenders because Ozark Hellbenders were protected. The individual 
also relayed that he knew where to search for hellbenders by reading 
the published literature. In 1985, Missouri Department of Conservation 
agents apprehended two other individuals illegally collecting Ozark 
Hellbenders, among other protected species, from the North Fork White 
River (McNair 2011, pers. comm.). The two individuals were cited and 
fined for ``possession of a protected species.''
    Anecdotal information suggests unauthorized collection of Ozark 
Hellbenders on the Spring River in Arkansas contributed to the recent 
population crash, as reaches of the Spring River that formerly 
contained 35 to 40 hellbenders have had no individuals present for more 
than 10 years (Irwin 2008b, 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 2008b, pers. comm.). At 
another Spring River site, personnel from a local canoe rental reported 
that commercial collectors took more than 100 Ozark Hellbenders in 2 
days (Trauth et al. 1992, p. 85), which also likely impacted the 
population. Amphibians such as the hellbender, a relatively slow-
moving, aquatic species, may be collected with little effort, making 
them even more susceptible to this threat.
    While large collecting events appear to have occurred primarily in 
the 1980s, the unauthorized collection of hellbenders 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,

[[Page 61968]]

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.); while in 2010 a 
person posted an Internet ad looking for wholesale lots of hellbenders 
(Briggler 2010a, 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 
2005, pers. comm.). Further evidence of the current demand for 
hellbenders overseas includes an Eastern Hellbender declared for export 
to Europe in 2010 (Tabor 2010, pers. comm.) and a hellbender 
(subspecies not specified) declared in 2005 for export to Japan (LEMIS 
2008). The Law Enforcement Management Information System (LEMIS) is the 
Service's law enforcement data system and includes information on 
imported and exported wildlife. Numbers provided by LEMIS declarations 
reports, however, can differ greatly from actual export numbers when 
animals are collected illegally and not declared. 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.
    Unlike many U.S. species listed under the Act, the Ozark Hellbender 
has commercial trade value. 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 thus 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, 212). The MDC reports that gigging popularity and 
pressure have increased, which increases the 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 various 
species of suckers spans the reproductive season of the Ozark 
Hellbender in the North Fork White River and also overlaps that of the 
hellbender in other river basins. 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, the fast decomposition rate of amphibians, and the 
possibility of giggers removing the specimen), 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 the 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 hellbenders under appropriate 
State wildlife statutes; and controlling information on the location of 
hellbenders. The unauthorized collection of Ozark Hellbenders for 
illegal commercial sale in the pet trade, however, continues to be a 
significant threat.

C. Disease or Predation

Disease (Chytridiomycosis)
    Background--Chytridiomycosis is a highly infectious amphibian 
disease caused by the pathogen Batrachochytrium dendrobatidis (Bd, or 
amphibian chytrid fungus), and 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 2011, 
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 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 including Asia, where it was recently documented (Weldon et 
al. 2004, pp. 2100-2105; Speare and Berger 2005, pp. 1-9; Goka et al. 
2009, pp. 4765-4767).
    Currently, there are two theories on the development of the Bd as a 
global amphibian pathogen. One theory is that the 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 Bd 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. The fungus 
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 one

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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 2007, pers. 
comm.).
    Persistence of Bd 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) concluded that the fungus can survive saprophytically outside the 
amphibian host for up to 7 weeks in lake water and up to 3 to 4 weeks 
in tap water. Further, Carey et al. (2003, p. 130) stated 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 
Bd 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 the pathogen 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 Bd are 
continually at risk because temperatures are ideal for the persistence 
of the 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 fungus. Climate change is one of the environmental 
factors that has been indicated as a key promoter in the spread of the 
Bd 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).
    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 pathogens related to amphibian declines, with more than 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, during only a few months of surveying, frog 
and salamander species richness and amphibian density declined by more 
than 60 percent and 90 percent, respectively. The declines were 
attributed to the prevalence of chytrid fungus in amphibian habitats 
(Lips et al. 2006, pp. 3165-3166).
    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, possibly reducing 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 either 
directly or indirectly from Bd (Duncan 2007, pers. comm.).
    Disease in wild hellbenders--As a result of the mortalities 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 
was positive (heavily positive in a few locations, indicating higher 
concentrations of the fungus); within the Eleven Point River (Missouri 
and Arkansas), 16 percent was positive (positives spread throughout 
river); and within the North Fork of the White River, 15 percent was 
positive (positives spread throughout river) (Briggler 2008b, pers. 
comm.). These results indicate the minimum number of infected 
individuals because 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 considered 
functionally extirpated (Irwin 2008a, pers. comm.). During future 
surveys, all animals encountered (new and recaptures) will be tested 
for the presence of B. dendrobatidis.
    The immediacy of the threat from chytridiomycosis has been 
significantly heightened since the Bd pathogen has been found to occur 
in all known extant populations of the Ozark Hellbender. Exact effects 
of the fungus on Ozark Hellbender populations remains unknown, but 
infected individuals of other amphibian species have experienced 
decreased growth rates (Davidson et al. 2007, p. 1773) and reduced 
survivability (Pilliod et al. 2010, pp. 1264-1265). Hellbenders may be 
particularly sensitive to thickening of the epidermis caused by Bd 
(Daszak et al. 1999, pp. 737-738) as more than 90 percent of their 
oxygen is obtained through cutaneous respiration (Guimond and 
Hutchison, p. 1263).
Abnormalities
    Wheeler et al. (2002, pp. 250-251) investigated morphological 
aberrations in the Ozark 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 
reported 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. Briggler (2011b, 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 euthanized and sent to the USGS 
National Wildlife Health Center 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

[[Page 61970]]

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.).
    The current belief is that secondary bacterial and fungal 
infections are causing the observed abnormalities on Ozark Hellbenders 
(Briggler 2011a, pers. comm.). While these pathogens likely naturally 
occur on the animals, it appears that some unknown factor is increasing 
the hellbenders' susceptibility to these infections. In hellbenders 
infected with Bd, there may be a connection between the chytrid fungus 
and presence of abnormalities such as lesions, digit and appendage 
loss, and epidermal sloughing. Although evidence is lacking to conclude 
that infection by Bd causes immunosuppression, it has been hypothesized 
that the pathogen increases the vulnerability of hellbenders to 
secondary bacterial and fungal infections and thus is associated with 
the abnormalities (Irwin 2010, pers. comm.). However, not all 
hellbenders exhibiting the abnormalities described above test positive 
for infection by the fungus. Therefore, while the Bd pathogen may cause 
some hellbenders to be more susceptible to other infections, including 
those responsible for lesions and appendage loss, it appears that 
additional unknown factors are underlying the increased vulnerability.
    While the cause of the observed abnormalities is uncertain, the 
presence of these physical impairments (and the frequency with which 
they occur) is likely contributing to Ozark Hellbender declines by 
reducing survivorship and reproduction. Lesions on the feet and absence 
of appendages altogether seemingly would reduce motility and foraging 
ability, and possibly increase vulnerability of hellbenders to 
predators. Blindness or missing eyes may also decrease survivability; 
while the overall stress imposed on affected individuals has the 
potential to reduce breeding activities and thus decrease recruitment.
Predation
    Trout stocking has increased in recent years both in Missouri and 
Arkansas. While no trout are native to 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-stream stretches that will be 
stocked with brown and rainbow trout (Missouri Department of 
Conservation 2003, pp. 31-32). Nonnative trout are stocked in all 
rivers that historically and currently contain Ozark Hellbenders ((MDC 
2003, pp. 24-26, AGFC 2004, p. 4). 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). In addition, highly predacious 
tiger muskies (hybrids between Northern pike and muskellunge (Esox 
masquinogy x E.lucius) were introduced into the Spring River in 
Arkansas in 1989.
    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 do 
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.). The failure of hellbender 
larvae to recognize trout as a threat is likely a nonadaptive response 
the makes this amphibian more susceptible to predation. 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 between native 
predatory fishes and nonnative trout. Gall (2008, pp. 23, 30-31) 
determined 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 in Missouri 
exhibited only weak fright responses when exposed to trout stimuli, 
they responded with strong fright responses to other native predatory 
fish.
    Gall (2008, p. 63) suggested 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 2008, 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). Gall 
(2008, p. 63) provided evidence that predation by introduced trout 
cannot be ruled out as a factor affecting the Ozark Hellbender and 
possibly contributes to their decline.

[[Page 61971]]

    In addition to brown trout and four other native predatory fish, 
walleye (Stizostedion vitreum) have been stimulated to approach prey 
more often and faster in the presence of hellbender secretions (Gall 
2008, pp. 23-24). Although walleye are native, stocking the species at 
greater densities than those occurring naturally may increase predation 
pressures on hellbender larvae 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 
(Bd, or amphibian chytrid fungus) 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.). 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 
short of mortality (Briggler 2008a, pers. comm.).
    Nonnative trout are stocked in all rivers that historically and 
currently contain hellbenders in Missouri. Predation of larval 
hellbenders by nonnative trout and other piscivorous fish 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 2008b, 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 
scientific collecting from 1991 to 1996 and has since allowed only 
limited numbers of scientific collecting permits, and only for those 
projects contributing to conservation and recovery efforts (Briggler 
2011d, 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.
    State regulations for gigging and for trout stocking do not protect 
the Ozark Hellbender. The gigging season for various species of suckers 
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 (MDC 
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).
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 highly sensitive 
aquatic organisms such as the Ozark Hellbender because a number of 
activities responsible for habitat degradation are outside of 
regulatory oversight. There are no regulatory requirements to implement 
Best Management Practices (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) may result in erosion and 
sedimentation. Additionally, there are no laws or regulations that 
preclude livestock from grazing in riparian corridors and wading in 
streams and rivers. Nonpoint pollution sources (for example, animal and 
human waste, agricultural practices, increased road construction) may 
be causing much of the degraded water quality throughout the Ozark 
Hellbender's range. The degradation is more apparent in stretches of 
rivers that are not within federally or State protected lands, such as 
in the Eleven Point River in Arkansas (Irwin 2008b, pers. comm.). While 
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, the entire watershed in Arkansas is privately owned with 
increased threat from stream bank clearing and unrestricted livestock 
access, which have an increased effect on remaining Ozark Hellbender 
populations (Irwin 2008b, 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, possibly contribute to the decline of Ozark 
Hellbenders in these systems.
Lacey Act
    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

[[Page 61972]]

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 wildlife codes 
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 illegally obtained hellbender is not identified to 
the Ozark subspecies, it would be difficult for a wildlife inspector to 
identify it as the prohibited taxon. 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 the subspecies' rarity increases and, consequently, 
commercial value increases. Therefore, concurrent with the proposal to 
list the Ozark Hellbender as endangered, the Service proposed on 
September 8, 2010, to include both hellbender subspecies in Appendix 
III 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.
    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. The final rule for the CITES Appendix III 
listing is being published concurrently in today's Federal Register.
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, but several factors contributing to 
degradation of water quality remain outside government regulatory 
authority. 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 also finalized listing 
the Eastern and Ozark hellbender in Appendix III of CITES concurrently 
in today's Federal Register. Nonetheless, the CITES listing applies 
only to the export of hellbenders from the United States. Current 
regulations also do not protect Ozark Hellbenders from gigging by 
anglers or potential predation by introduced nonnative trout.

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 events (Smith 1990, pp. 311-321). 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. 374) 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, pp. 410-415) study, in which hellbender populations 
from different rivers demonstrated 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 subspecies going 
extinct or making it less able to recover or adapt to catastrophic 
events.
    Genetic studies have repeatedly demonstrated very low genetic 
diversity in hellbender populations, which could contribute to the 
decline of the species through inbreeding depression (Kucuktas et al. 
2001, p. 135). 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.
    Recruitment and Reproductive Capability--The hellbender's late 
sexual maturity leads to a higher risk of death prior to reproduction 
and to 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;

[[Page 61973]]

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, pp. 153, 155).
    Because hellbenders are long-lived, a population may seemingly not 
be highly dependent on recruitment to remain extant (Mayasich et al. 
2003, p. 22). Empirical and theoretical evidence suggests, however, 
that overlapping generations within a population (high survivorship 
among juveniles) is necessary to maintain stable populations (Congdon 
et al. 1993, pp. 830-832) and maintain genetic diversity by 
facilitating gene flow among older and younger individuals (Ellner and 
Hairston 1994, pp. 413-415). Wheeler et al. (2003, p. 155) postulated 
that the lack of sufficient recruitment may have impeded the population 
stability of Ozark Hellbenders and the ability of the populations to 
maintain genetic diversity.
    Pfingsten (1990, p. 49) cautioned that lack of larvae detection 
could mean that larvae occupy a microhabitat that has yet to be 
surveyed. However recent information indicates that the lack of larvae 
and juveniles in populations is not a function of survey technique, but 
instead reflects a true reduction in recruitment (Lipps 2010, pers. 
comm.; Phillips 2010, pers. comm.).
    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. Because 
motility and viability appeared unaffected, artificial fertilization 
might be a viable conservation technique, however, 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).
    Climate Change--Because the Ozark Hellbender is an aquatic 
salamander totally dependent upon an adequate water supply and has 
specific habitat requirements (i.e., dissolved oxygen and low water 
temperatures); we expect that climate change could significantly alter 
the quantity and quality of hellbender habitat and thus impact the 
species in the future. Potential adverse effects from climate change 
include increased frequency and duration of droughts (Rind et al. 1990, 
p. 9983; Seager et al. 2007, pp. 1181-1184; Rahel and Olden 2008, p. 
526) and an increased virulence of nonnative parasites and pathogens to 
native species from warming temperatures (Rahel and Olden 2008, p. 
525). If the health of hellbenders is already compromised by other 
environmental stressors, elevated water temperatures could increase 
susceptibility to bacterial and fungal infections, especially for those 
hellbenders infected with Bd (Wanner 2011, pers. comm.).
    Climate warming may also decrease groundwater levels (Schindler 
2001, p. 22) or significantly reduce annual stream flows (Moore et al. 
1997, p. 925; Hu et al. 2005, p. 9); while the increased drought 
conditions and prolonged low flows associated with climate change may 
favor the establishment and spread of nonnative species (Rahel and 
Olden 2008, pp. 526, 529-530). Low or interrupted stream flows could 
have devastating effects on Ozark Hellbenders populations by causing 
direct mortality from desiccation (during periods of interrupted flows) 
and reduced fitness and reproduction due to stress, decreased prey 
availability, and lower dissolved oxygen. Additionally, it is projected 
that stream basin discharges may be further impacted by synergistic 
effects of changes in land cover and climate change in the Missouri 
Ozarks (Hu et al. 2005, p. 9).
Summary of Other Natural or Manmade Factors Affecting Its Continued 
Existence
    The small size and isolation of Ozark Hellbender populations, loss 
of genetic diversity, lack of recruitment, and potential effects from 
climate change could exacerbate other factors negatively affecting the 
subspecies and increase the risk of extinction. These additional 
factors are particularly detrimental when combined with other threats 
affecting the hellbender, such as of habitat loss, water quality 
degradation, chytridiomycosis, and unauthorized collection and trade. 
In addition, effects from some threats likely interact synergistically 
to enhance effects from other factors (for example, compromised health 
from water quality or pathogen issues may increase predation risks).

Determination for the Ozark Hellbender

    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.).
    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 from livestock production and pasture land, 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. Trout stocking continues to occur on 
hellbender streams both in Missouri and Arkansas. The reduced numbers 
of larval and subadult hellbenders observed may be attributed to 
predation by nonnative trout. Increased nitrate levels, along with a 
variety of other contaminants from agricultural runoff and increased 
urbanization, have been

[[Page 61974]]

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, change water 
temperatures and flows below reservoirs, and increase predation at 
sites immediately above reservoirs. Remaining Ozark Hellbender 
populations are small and isolated, in part due to reservoir 
construction that makes hellbenders vulnerable to individual 
catastrophic events and reduces 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 threat to hellbenders during the breeding season 
(Nickerson and Briggler 2007, pp. 209-211). The increase in number or 
size of recreational boats and inner 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 possible increased susceptibility to chytridiomycosis due to 
these threats, has created a situation in which the Ozark Hellbender is 
currently in danger of extinction throughout all of its range. 
Researchers and managers agree that, while a solution will hopefully be 
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.
    Based on an August 2006 PHVA model, hellbender experts concluded 
that the Ozark Hellbender metapopulations are expected to decline by 
more than 50 percent in 12 to 16 years, the viability of all individual 
populations will be significantly reduced within 20 to 25 years with 
estimates of fewer than 100 individuals, and a reduction in genetic 
diversity by as much as 90 percent will occur. 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 the prevalence of chytrid fungus and its possible 
effects on hellbenders was not taken into consideration. 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 currently in danger of extinction 
throughout all of its range.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Ozark Hellbender. Section 3 of the Endangered Species Act 
defines an endangered species as ``* * * any species which is in danger 
of extinction throughout all or a significant portion of its range'' 
and a threatened species as ``* * * any species which is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' Due to multiple threats to 
the Ozark Hellbender and the ongoing population decline, this 
subspecies is increasingly threatened with extinction. Based on the 
immediate 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, the Ozark Hellbender meets the 
definition of an endangered species under the Act, rather than a 
threatened species because the threats are occurring now, making the 
subspecies in danger of extinction at the present time. Because threats 
extend throughout the entire range, it is unnecessary to determine if 
the Ozark Hellbender is in danger of extinction throughout a 
significant portion of its range. Therefore, on the basis of the best 
scientific and commercial information available, we are listing the 
Ozark Hellbender as an endangered species throughout its entire range.

Critical Habitat

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 final rule 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 Web sites, usually with maps outlining critical 
habitat. We believe that the publication of maps and descriptions

[[Page 61975]]

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. Supporting our 
concern is an instance of illegal collection of a federally listed 
North Carolina mountain plant immediately following the publication of 
critical habitat maps (USFWS 2001; pp. 51448-51449). With critical 
habitat maps in hand, collectors visited local Forest Service district 
offices and asked directions to the sites. Because the plant was not 
previously known to be desired by rare plant collectors and had never 
been offered for sale in commercial trade, there was no likely cause 
for concern. However, following the visit by collectors, several plants 
were discovered missing. The actual removal of the plants could be 
documented because each individual plant had previously been mapped, 
and the carefully covered excavations where plants had been removed 
could be discerned.
    Given that the current population estimate for Ozark Hellbenders is 
very small, the removal of even a few individuals from a particular 
habitat patch could cause local extirpations in those patches. If 
individual patches are lost, populations within each river become more 
fragmented, and the likelihood of gene flow is reduced.
    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. In addition, the majority of past 
collecting events have involved individuals travelling from other 
States to collect Ozark Hellbenders. Publication of critical habitat 
maps would allow these individuals to more efficiently and effectively 
target collecting sites by delineating all the occupied areas within 
the Ozark Hellbender range. It is commonly known that hellbenders are 
found by surveying specific habitats and over-turning rocks of certain 
dimensions. In designating critical habitat, those specific habitat 
features would be described in detail, and maps would disclose the 
specific sections of streams where collectors could look to capture 
hellbenders. Furthermore, the detailed information in a critical 
habitat designation would provide collectors with more information than 
is currently available to them through previously published reports. 
Those previously published reports no longer contain current 
information on the location of Ozark Hellbenders, and those reports 
only disclose locations for a small portion of the total number of 
hellbender sites.
    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.; Ziehmer 2010, pers. comm.). State hellbender experts believe 
that designating critical habitat could negate their efforts to 
restrict access to locality data 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 5th and 9th 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 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th 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 physical and biological features 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 their 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.
    The species occurs exclusively on private lands in Arkansas. In 
Missouri, Ozark Hellbenders occur primarily on lands managed by the 
National Park Service (Ozark National Scenic Riverways) 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 require a Federal 
agency to determine if their proposed action would likely result in the 
destruction or adverse modification of 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

[[Page 61976]]

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 provide technical 
assistance and information to 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 provide 
technical assistance and information to landowners, State and local 
governments, and the public regarding important conservation values. 
However, 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 (OHWG 2010, pp. 11-12).
    The Ozark Hellbender Working Group, formed in 2001, is composed of 
personnel from Federal and State agencies, academia, zoos, nonprofit 
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 
habitat) puts the species in further peril. Because Ozark Hellbenders 
are in danger of extinction, a focused and comprehensive approach to 
reducing threats is required. Several measures are currently being 
implemented to address the threat of unauthorized collection and trade 
of hellbenders, and additional measures will be implemented once this 
listing determination is in effect. 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 facilitate an increased threat of illegal take and 
collection of the Ozark Hellbender, we find that the potential negative 
impacts associated with the designation of critical habitat outweigh 
any benefit of designation.
Summary of Prudency Determination
    We have determined that the designation of critical habitat could 
facilitate unauthorized collection and subsequent illegal trade of the 
Ozark Hellbender. The Ozark Hellbender is valued in the pet trade, and 
that value is likely to increase as the species becomes rarer. Although 
critical habitat designation may provide some benefits to the 
conservation of the Ozark Hellbender by highlighting areas important 
for conservation, such benefits would be minimal. We have concluded 
that, even though some benefit from designation may exist, the 
increased threat to the Ozark Hellbender from unauthorized collection 
and illegal trade outweighs any benefit to the taxon. A determination 
not to designate critical habitat also supports the measures taken by 
the States to control and restrict information on Ozark Hellbender and 
no longer to make locality data 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, because 
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.

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. 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,

[[Page 61977]]

construction of recreational trails and facilities adjacent to streams, 
water withdrawal projects, pesticide registration and usage, 
agricultural assistance programs, mining, road and bridge construction, 
Federal loan programs, and any federally funded activities. Activities 
will trigger consultation under section 7 of the Act if they may affect 
the Ozark Hellbender as addressed in this rule. Under Section 7(a)(1) 
and during formal consultation procedures under Section 7(a)(2), the 
Service, in cooperation with Federal agencies, may outline conservation 
measures that can provide benefits to the Ozark Hellbender.
    The listing of the Ozark Hellbender initiates the development and 
implementation of a rangewide 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, outline future research 
needs, identify possible partners, 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 will be able to grant 
funds to the States of Missouri and Arkansas for management actions, 
research studies, or propagation needs that may be necessary for the 
conservation of the Ozark Hellbender. During State environmental review 
processes in Missouri and Arkansas, BMPs can be provided to reduce any 
potential impacts to Ozark Hellbenders and Ozark Hellbender habitat. 
Finalizing the rule to add Ozark and Eastern Hellbenders to Appendix 
III of CITES will contribute to the conservation of Ozark Hellbender by 
discouraging the unauthorized collection and illegal trade of 
hellbenders.
    The Act and its implementing regulations found at 50 CFR 17.21 and 
17.31 set forth a series of general prohibitions and exceptions that 
apply to all endangered and threatened wildlife. As such, these 
prohibitions will be applicable to the Ozark Hellbender. The 
prohibitions, 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 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 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 will likely be considered a 
violation of section 9; however, possible violations are not limited to 
these actions alone:
    (1) Unauthorized pursuing, or attempting to pursue, 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 disturbing large 
rocks within streams, or 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 ADDRESSES). 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, 5600 American Blvd. West, 
Suite 990, Bloomington, MN 55437; Phone 612-713-5350; Fax 612-713-5292.

Required Determinations

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of

[[Page 61978]]

information unless it displays a currently valid OMB control number.

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).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov or upon request from the 
Field Supervisor, Columbia, Missouri Ecological Services Field Office 
(see ADDRESSES).

Authors

    The primary author of this final rule is staff of the Columbia 
(Missouri) Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
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.


0
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:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                           Species                                                   Vertebrate population
--------------------------------------------------------------   Historic  range      where endangered or         Status        When   Critical  Special
             Common name                  Scientific name                                  threatened                          listed   habitat   rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             Amphibians
 
                                                                      * * * * * * *
Hellbender, Ozark...................  Cryptobranchus           AR, MO.............  Entire.................  E                    795        NA       NA
                                       alleganiensis bishopi.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: September 26, 2011.
 Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-25690 Filed 10-5-11; 8:45 am]
BILLING CODE 4310-55-P