[Federal Register Volume 80, Number 152 (Friday, August 7, 2015)]
[Rules and Regulations]
[Pages 47418-47428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19335]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2014-0008; 4500030113]
RIN 1018-BA32


Endangered and Threatened Wildlife and Plants; 4(d) Rule for the 
Georgetown Salamander

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, finalize a rule under 
authority of section 4(d) of the Endangered Species Act of 1973, as 
amended, that provides measures that are necessary and advisable to 
provide for the conservation of the Georgetown salamander (Eurycea 
naufragia), a species that occurs in Texas. This final 4(d) rule will 
provide the Service the opportunity to work cooperatively, in 
partnership with the local community and State agencies, on 
conservation of the Georgetown salamander and the ecosystems on which 
it depends.
    This 4(d) rule is necessary and advisable to provide for the 
conservation of the Georgetown salamander because it strengthens water 
quality protection measures throughout the species' range, allows for 
consideration of new information to optimize conservation measures, and 
furthers conservation partnerships that can be leveraged to improve the 
status of the Georgetown salamander.

DATES: This rule is effective September 8, 2015.

ADDRESSES: This final rule, the final environmental assessment, and a 
list of references cited are available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2014-0008, or by mail 
from the Austin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT). Comments and materials we received are available 
for public inspection at http://www.regulations.gov. All of the 
comments, materials, and documentation that we considered in this 
rulemaking are available by appointment, during normal business hours 
at the Austin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, Austin Ecological Services Field Office, 
10711 Burnet Rd., Suite 200, Austin, TX 78758; telephone 512-490-0057; 
facsimile 512-490-0974. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    On August 22, 2012, we published a proposed rule in the Federal 
Register (77 FR 50768) to list the Georgetown salamander (Eurycea 
naufragia), Salado salamander (Eurycea chisholmensis), Jollyville 
Plateau salamander (Eurycea

[[Page 47419]]

tonkawae), and Austin blind salamander (Eurycea waterlooensis) as 
endangered species and to designate critical habitat for these species 
under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 
1533 et seq.). The Federal lists of endangered and threatened species 
and other protective regulations for listed species under the Act are 
in part 17 of title 50 of the Code of Federal Regulations (CFR). On 
February 24, 2014, we published a final determination to list the 
Georgetown salamander and the Salado salamander as threatened species 
under the Act (79 FR 10236) and a proposed rule under section 4(d) of 
the Act (a proposed 4(d) rule) for the Georgetown salamander (79 FR 
10077) at 50 CFR 17.43. On April 9, 2015, we revised the proposed 4(d) 
rule for the Georgetown salamander and reopened the public comment 
period for 30 days, ending May 11, 2015 (80 FR 19050). Please see the 
final listing determination (79 FR 10236) for additional information 
concerning previous Federal actions for the Georgetown salamander.

Background

    The Georgetown salamander is entirely aquatic and depends on water 
from the Edwards Aquifer in sufficient quantity and quality to meet the 
species' life-history requirements for survival, growth, and 
reproduction. Degradation of habitat, in the form of reduced water 
quality and quantity and disturbance of spring sites, is the main 
threat to this species. For more information on the Georgetown 
salamander and its habitat, please refer to the February 24, 2014, 
final listing determination (79 FR 10236).
    The Act does not specify particular prohibitions, or exceptions to 
those prohibitions, for threatened species. Instead, under section 4(d) 
of the Act, the Secretary of the Interior has the discretion to issue 
such regulations as she deems necessary and advisable to provide for 
the conservation of such species. The Secretary also has the discretion 
to prohibit by regulation, with respect to any threatened wildlife 
species, any act prohibited under section 9(a)(1) of the Act. 
Exercising this discretion, the Service developed general prohibitions 
(50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) 
under the Act that apply to most threatened wildlife species. 
Alternately, for other threatened species, under the authority of 
section 4(d) of the Act, the Service may develop specific prohibitions 
and exceptions that are tailored to the specific conservation needs of 
the species. In such cases, some of the prohibitions and authorizations 
under 50 CFR 17.31 and 17.32 may be appropriate for the species and 
incorporated into a rule under section 4(d) of the Act. However, these 
rules, known as 4(d) rules, will also include provisions that are 
tailored to the specific conservation needs of the threatened species 
and may be more or less restrictive than the general provisions at 50 
CFR 17.31.

Summary of Changes From the Revised Proposed Rule

    Based on information we received in both public comment periods on 
the proposed 4(d) rule (see Summary of Comments and Recommendations), 
we revised the provisions of the 4(d) rule to provide greater clarity 
around the activities that are covered and not covered by this rule.

Provisions of the 4(d) Rule for the Georgetown Salamander

    Under section 4(d) of the Act, the Secretary may publish a rule 
that modifies the standard protections for threatened species and that 
contains prohibitions tailored to the conservation of the species and 
that are determined to be necessary and advisable. Under this 4(d) 
rule, the Service provides that all of the prohibitions under 50 CFR 
17.31 and 17.32 are necessary and advisable and, therefore, apply to 
the Georgetown salamander, except as noted below. This 4(d) rule will 
not remove or alter in any way the consultation requirements under 
section 7 of the Act.

City of Georgetown Unified Development Code (UDC)

    For activities outside of habitat occupied by the Georgetown 
salamander, the final 4(d) rule provides that take of Georgetown 
salamanders that is incidental to regulated activities (as defined in 
title 30, Texas Administrative Code, section 213.3(28)) that are 
conducted consistent with the water quality regulations contained in 
chapter 11.07 of the City of Georgetown Unified Development Code (UDC 
11.07) (https://udc.georgetown.org/) will not be prohibited under the 
Act. The water quality regulations in UDC 11.07 were finalized on 
February 24, 2015. Chapter 11.07 of the UDC describes stream and spring 
buffers, water quality best management practices, and geologic 
assessments that are required for property development within the 
Northern Edwards Aquifer Recharge Zone and the City of Georgetown.
    ``Regulated activities'' are defined in title 30, Texas 
Administrative Code, section 213.3(28) as any construction-related or 
post-construction activities on the Recharge Zone of the Edwards 
Aquifer having the potential for polluting the Edwards Aquifer and 
hydrologically connected surface streams. ``Regulated activities'' do 
not include the clearing of vegetation without soil disturbance, 
agricultural activities, oil and gas activities, routine maintenance of 
existing structures that does not involve additional site disturbance, 
and construction of single-family residences on lots larger than 2 
hectares (ha) (5 acres (ac)). More specific details on spring and 
stream buffers can be found in sections 11.07.003A. and B. of the UDC.
    When a property owner submits a development application for a 
regulated activity on a tract of land located over the Edwards Aquifer 
Recharge Zone, that individual is required to submit a geologic 
assessment to the City of Georgetown. The geologic assessment 
identifies and describes all springs and streams on any subject 
property, and the UDC establishes buffer zones around identified 
springs and streams. For springs, the buffer encompasses 50 meters (m) 
(164 feet (ft)) extending from the approximate center of the spring 
outlet that is identified in a geologic assessment. For streams, the 
boundaries of the buffer must coincide with either the boundaries of 
the Federal Emergency Management Agency (FEMA) one percent floodplain 
or a calculated one percent floodplain, whichever is smaller. In the 
absence of a FEMA floodplain or calculated one percent floodplain, 
these stream buffers may be no smaller than 61 m (200 ft) wide with at 
least 23 m (75 ft) from the centerline of the stream. Section 11.07.003 
of the UDC states that no ``regulated activities'' may be conducted 
within the spring and stream buffers.
    In addition to the establishment of these spring and stream 
buffers, the UDC outlines water quality best management practices 
designed to minimize sediment runoff, increase the removal of total 
suspended solids, prevent an increase in flow rates, and ensure spill 
containment for new or expanded roadways. These regulations in chapter 
11.07 of the UDC are designed to reduce water quality degradation that 
may occur as a result of development. By reducing further water quality 
degradation that may result from development, these protective measures 
are also expected to reduce degradation to Georgetown salamander 
habitat that may occur.
    The UDC 11.07 also outlines exemptions from the requirement to 
prepare a geologic assessment, the process by which a landowner may 
request a variance to the spring and

[[Page 47420]]

stream buffer requirements, and exemptions to the spring and stream 
buffer requirements of section 11.07.003. Small (less than 2-ha (5-ac)) 
single-family and two-family residential developments are exempt from 
submitting a geologic assessment; however, these developments are 
required to implement UDC water quality measures. Landowners may 
request to the City of Georgetown a variance from the spring and stream 
buffer requirements in UDC 11.07 if: The variance is not contrary to 
the public interest; due to special conditions, a literal enforcement 
of the ordinance would result in unnecessary hardship; and the spirit 
of the ordinance is observed and substantial justice is done, in 
accordance with UDC section 2.05.010.A.6. These variances and 
exemptions apply only to sites not occupied by Georgetown salamanders.
    Properties with a site occupied by the Georgetown salamander are 
exempt from the spring and stream buffer requirements in chapter 11.07. 
Rather, UDC Appendix A outlines conservation measures (which are 
voluntary under the UDC) to be implemented when undertaking regulated 
activities that occur on a tract of land with an occupied site or 
within 984 ft (300 m) of an occupied site. An ``occupied site'' is 
defined in the UDC as any spring identified as a critical habitat unit 
by the Service for the Georgetown salamander and includes the following 
sites: Cobb Well, Cobb Springs, Cowen Creek Spring, Bat Well Cave, 
Walnut Spring, Twin Spring, Hogg Hollow Spring, Cedar Hollow Spring, 
Knight (Crockett Garden) Spring, Cedar Breaks Hiking Trail Spring, 
Water Tank Cave, Avant's (Capitol Aggregates), Buford Hollow Springs, 
Swinbank Spring, Shadow Canyon, San Gabriel Spring, and Garey Ranch 
Springs. For the purposes of this 4(d) rule, however, we define an 
occupied site to be any site where Georgetown salamanders have been 
found in the past or new sites found in the future.
    For activities involving habitat occupied by the Georgetown 
salamander, the final 4(d) rule provides that take of the Georgetown 
salamander that is incidental to regulated activities that are 
conducted consistent with the guidelines described in Appendix A of the 
UDC will not be prohibited under the Act. Similar to chapter 11.07 of 
the UDC, the guidelines in Appendix A establish stream and spring 
buffers and allowable activities within those buffers; however, the 
measures described in Appendix A create larger, more protective buffers 
than those that appear in chapter 11 for unoccupied sites. First, 
Appendix A establishes a ``No-Disturbance Zone'' in the stream or 
waterway into which a spring drains directly; this zone extends 80 m 
(264 ft) upstream and downstream from the approximate center of the 
spring outlet of an occupied site and is bounded by the top of the 
bank. No regulated activities may occur within the ``No-Disturbance 
Zone.'' In addition, Appendix A establishes a ``Minimal-Disturbance 
Zone'' for the subsurface area that drains to the spring(s) at an 
occupied site; this zone consists of the area within 300 m (984 ft) of 
the approximate center of the spring outlet of an occupied site, except 
those areas within the ``No-Disturbance Zone.'' Most regulated 
activities are also prohibited in the ``Minimal-Disturbance Zone,'' but 
single-family developments, limited parks and open space development, 
and wastewater infrastructure will be allowed. For additional details 
on the buffers around occupied sites and prohibited actions, please 
refer to the UDC Appendix A.
    In general, this 4(d) rule does not apply to deviations from the 
water quality measures in UDC 11.07 and Appendix A. Any variance from 
the measures and guidelines described in UDC 11.07 (non-occupied sites) 
is not covered by this final 4(d) rule, unless that variance has been 
granted by the City of Georgetown. In addition, variances from the 
spring and stream buffer requirements of UDC 11.07 may be granted by 
the City of Georgetown only if the variance is not contrary to the 
public interest, if due to special conditions a literal enforcement of 
the ordinance would result in unnecessary hardship, and if the spirit 
of the ordinance is observed and substantial justice is done, in 
accordance with UDC section 2.05.010.A.6. Projects involving habitat 
occupied by the Georgetown salamander (which are not eligible for 
variances) where the project proponent chooses not to follow the 
voluntary guidelines in Appendix A of the UDC, may work with the 
Service to pursue take coverage by developing a habitat conservation 
plan (HCP) in accordance with section 10 of the Act.
    Section 11.07.008 of the UDC also establishes an Adaptive 
Management Working Group (Working Group) that is responsible for 
reviewing data on a regular basis and making recommendations for 
specific changes in the management directions related to the voluntary 
conservation measures for occupied sites in Appendix A. Adaptive 
management for preservation of the Georgetown salamander is one of the 
duties tasked to the Working Group. The adaptive management described 
in the UDC specifically applies to the guidelines (i.e., conservation 
measures) found in Appendix A; therefore, the guidelines described in 
Appendix A may change over time if they would result in equal or better 
conservation benefits to the Georgetown salamander, as determined by 
the Service. For example, if experience gained during implementation of 
the guidelines or new scientific information suggests that a buffer 
distance was either too small, or larger than needed, to achieve the 
intended benefits, that buffer distance could be modified. However, the 
activities covered under Appendix A (i.e., regulated activities) are 
not subject to change under the adaptive management provisions 
described in the UDC. In other words, exercising of adaptive management 
under this 4(d) rule cannot expand the scope of the covered activities 
beyond regulated activities (as defined in title 30, Texas 
Administrative Code, section 213.3(28)). The Working Group will develop 
an annual report regarding the preservation of the Georgetown 
salamander, continuous monitoring of the Georgetown salamander, 
assessment of research priorities, and the effectiveness of the water 
quality regulations and guidelines. Copies of the February 24, 2015, 
dated UDC 11.07 and Appendix A are available at http://www.regulations.gov at Docket No. FWS-R2-ES-2014-0008. Any revisions to 
Appendix A will be made available at https://udc.georgetown.org/udc-amendments/.

Determination

    Section 4(d) of the Act states that ``the Secretary shall issue 
such regulations as [s]he deems necessary and advisable to provide for 
the conservation'' of species listed as threatened species. 
Conservation is defined in the Act to mean ``to use and the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to [the Act] are no longer necessary.''
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, the Secretary may find that it 
is necessary and advisable not to include a taking prohibition, or to 
include a limited taking prohibition. See Alsea Valley Alliance v. 
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, and 2002 
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in 
State of Louisiana v. Verity,

[[Page 47421]]

853 F.2d 322 (5th Cir. 1988), the rule need not address all the threats 
to the species. As noted by Congress when the Act was initially 
enacted, ``once an animal is on the threatened list, the Secretary has 
an almost infinite number of options available to him [her] with regard 
to the permitted activities for those species. [S]he may, for example, 
permit taking, but not importation of such species,'' or she may choose 
to forbid both taking and importation but allow the transportation of 
such species, as long as the prohibitions, and exceptions to those 
prohibitions, will ``serve to conserve, protect, or restore the species 
concerned in accordance with the purposes of the Act'' (H.R. Rep. No. 
412, 93rd Cong., 1st Sess. 1973).
    Section 9 prohibitions make it illegal for any person subject to 
the jurisdiction of the United States to take (including harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt 
any of these), import or export, ship in interstate commerce in the 
course of commercial activity, or sell or offer for sale in interstate 
or foreign commerce any wildlife species listed as an endangered 
species, without written authorization. It also is illegal under 
section 9(a)(1) of the Act to possess, sell, deliver, carry, transport, 
or ship any such wildlife that is taken illegally. Prohibited actions 
consistent with section 9 of the Act are outlined for threatened 
wildlife in 50 CFR 17.31(a) and (b). For the Georgetown salamander, the 
Service has determined that a 4(d) rule tailored to its specific 
conservation needs is necessary and advisable, as discussed below. This 
final 4(d) rule provides that all prohibitions in 50 CFR 17.31(a) and 
(b) will apply to the Georgetown salamander, except as described below.
    Under this final 4(d) rule, incidental take of the Georgetown 
salamander will not be considered a violation of section 9 of the Act 
if the take occurs on any non-Federal land and from regulated 
activities that are conducted consistent with the water quality 
protection measures contained in chapter 11.07 and Appendix A of the 
City of Georgetown Unified Development Code. This final 4(d) rule 
refers to the definition of ``regulated activities'' in title 30, Texas 
Administrative Code, section 213.3(28), which is any construction-
related or post-construction activities on the recharge zone of the 
Edwards Aquifer having the potential for polluting the Edwards Aquifer 
and hydrologically connected surface streams. We have determined that 
this provision is necessary and advisable for the conservation of the 
Georgetown salamander, as explained in the paragraphs that follow.
    The local community in the City of Georgetown and Williamson County 
has expressed a desire to design and implement a local solution to 
conserving the natural resources in their county, including water 
quality and the Georgetown salamander (City of Georgetown Resolution 
No. 082812-N). All currently known locations for the Georgetown 
salamander are within the jurisdiction of the City of Georgetown, 
making the city an appropriate entity to manage conservation measures 
that protect Georgetown salamander habitat. Because impervious cover 
levels within most of the watersheds known to be occupied by the 
Georgetown salamander are still relatively low, a window of opportunity 
exists to design and implement measures to protect water quality and, 
therefore, conserve the salamander. The City and County's approach for 
accomplishing this conservation goal includes regulatory and non-
regulatory actions, as described below. Regulatory actions include 
passage of the Edwards Aquifer Recharge Zone Water Quality Ordinance 
(Ordinance No. 2013-59) by the Georgetown City Council on December 20, 
2013, and the revisions to their UDC (chapter 11.07) finalized on 
February 24, 2015. Their approach also includes non-regulatory actions, 
such as the technical guidance provided in Appendix A of the UDC, which 
outlines additional conservation measures to protect water quality and 
to avoid direct destruction of occupied sites.
    Habitat modification, in the form of degraded water quality and 
quantity and disturbance of spring sites, is the primary threat to the 
Georgetown salamander. The conservation measures in both chapter 11.07 
and Appendix A of the UDC provide a variety of water quality protection 
measures, such as the creation of buffers around springs and streams 
where regulated activities are prohibited, designed to lessen impacts 
to the water quality of springs and streams in the Edwards Aquifer 
Recharge Zone. The UDC is applied throughout the watersheds that 
contain the Georgetown salamander. Absent this 4(d) rule, the status 
quo would be to address development impacts through traditional tools 
(that is, sections 7 and 10 of the Act) that are generally applied at 
the project-by-project scale. The watershed-level approach in UDC 11.07 
and Appendix A works to avoid incremental environmental degradation 
that may go unnoticed on a small, individual project scale. Through 
this final 4(d) rule, we can achieve a greater level of conservation 
for the Georgetown salamander than we could without it because it 
encourages rangewide implementation of water quality protective 
measures that are aimed at addressing the primary threat of habitat 
modification and degradation for Georgetown salamanders. The majority 
of Georgetown salamanders occur within 164 ft (50 m) of a spring outlet 
(Pierce et al. 2010, p. 294; TPWD 2011, p. 3); this coincides with the 
spring and stream buffers for unoccupied sites. We also believe the 
salamander populations exist through underground conduits that may 
extend 300 m (984 ft) around cave or spring points; this area coincides 
with the size of the ``Minimal-Disturbance Zones'' for occupied sites. 
By limiting development activities within these respective areas, the 
measures in the UDC 11.07 and Appendix A are expected to limit water 
quality degradation in areas that may provide suitable surface or 
subsurface habitat for the Georgetown salamander now and in the future.
    Although the areas that provide recharge and the source water for 
specific areas occupied by the salamander have not been precisely 
delineated, the watershed-level approach makes it likely that unknown 
recharge areas are receiving water quality protection under the UDC. 
This is because the UDC prohibits regulated activities within buffers 
around all streams located within the recharge zone and the City of 
Georgetown jurisdiction. In karst aquifer systems, streams often 
contain important recharge features called swallow holes or swallets, 
which allow the stream to continue flowing underground in a conduit and 
feed the larger aquifer or even small springs directly (White 1998, p. 
172). For example, in the Barton Springs Segment of the Edwards 
Aquifer, hydrologists generally agree that most of the aquifer's 
recharge comes via these streambed recharge features (Mahler et al. 
2011, p. 4). Although similar research is lacking in the Northern 
Segment of the Edwards Aquifer, it is likely that the aquifer feeding 
Georgetown salamander habitat works in a similar way because both areas 
are karst aquifer systems, thereby making the stream buffers of the UDC 
crucial in protecting groundwater quality.
    This watershed-level approach also includes an adaptive management 
component that will allow the Adaptive Management Working Group 
(Working Group) to evaluate the response of salamander populations to 
management actions and quickly respond and recommend adjustments, if 
necessary, to management strategies to protect water

[[Page 47422]]

quality consistent with conserving the Georgetown salamander. The UDC 
formalizes the Working Group with representatives from the City of 
Georgetown, Williamson County, Texas Commission on Environmental 
Quality, Texas Parks and Wildlife Department, university scientists, 
private real estate developers, and the Service. The role of the 
Working Group is to:
     Review scientific information to understand the latest 
science on watershed management practices and the conservation of the 
Georgetown salamander;
     Recommend support for additional Georgetown salamander 
scientific studies and oversee a long-term monitoring program to ensure 
that salamander abundance at monitored locations is stable or 
improving;
     Conduct and evaluate water quality trend analysis as part 
of its long-term monitoring program to ensure water quality conditions 
do not decline and, in turn, result in impacts to salamander abundance; 
and
     Develop recommendations for changes to the UDC Appendix A 
for occupied sites if scientific and monitoring information indicates 
that water quality and salamander protection measures need changes to 
minimize impacts to salamander populations and to help attain the goal 
of species conservation.
    While a window of opportunity exists to design and implement 
conservation measures to conserve the Georgetown salamander, human 
population levels and development are expected to increase rapidly in 
Williamson County (Texas State Data Center 2012, pp. 166-167). The 
success of the local community's efforts depends on their robust 
adaptive management program. The program is designed to monitor and 
quickly assess the effectiveness of the identified conservation 
measures and strategies and to be able to respond quickly and adapt the 
conservation measures and strategies to provide equal or better 
conservation benefits to the Georgetown salamander. The adaptive 
management approach will ensure that the water quality protective 
measures are serving their intended purpose of conserving the 
Georgetown salamander, thereby providing for the conservation of the 
species. Changes to UDC Appendix A that are agreed upon by the Working 
Group through the adaptive management process, provide equal or greater 
conservation benefits to the Georgetown salamander, and approved by the 
Service would be covered under this 4(d) rule.
    By not prohibiting incidental take resulting from regulated 
activities conducted in accordance with the UDC 11.07 and Appendix A, 
the Service is supporting and encouraging a local solution to 
conservation of the Georgetown salamander. This final 4(d) rule will 
provide the Service the opportunity to work cooperatively, in 
partnership with the local community and State agencies, on 
conservation of the Georgetown salamander and the ecosystems on which 
it depends. Leveraging our conservation capacity with that of the 
State, local governments, and the conservation community at large may 
make it possible to attain biological outcomes larger than those we 
could attain ourselves due to the watershed-scale protection the UDC 
requires. Further, our local partners are best able to design solutions 
that minimize socioeconomic impacts, thereby encouraging participation 
in measures that will protect water quality and conserve the Georgetown 
salamander. In addition, by not prohibiting incidental take resulting 
from regulated activities conducted in accordance with UDC 11.07 and 
Appendix A, the Service is providing a streamlining mechanism for 
compliance with the Act for those project proponents who comply with 
the protective measures in UDC 11.07 and Appendix A and, thus, are 
considered covered by this final 4(d) rule. Project proponents who 
comply with these protective measures, as outlined in this final rule, 
can implement their projects without any potential delay from seeking 
incidental take coverage from the Service, while also minimizing water 
quality degradation. This approach provides greater regulatory 
certainty and streamlines compliance for project proponents and thus is 
likely to result in increased implementation of water quality 
protective measures that benefit salamanders.
    In summary, this 4(d) rule is necessary and advisable to provide 
for the conservation of the Georgetown salamander because it 
strengthens water quality protection measures throughout the species' 
range, allows for consideration of new information to optimize 
conservation measures, and furthers conservation partnerships that can 
be leveraged to improve the status of the Georgetown salamander. 
Implementation of water quality protection measures throughout the 
range of the species will provide greater protection for the species 
than would project-by-project efforts, and provide protections to 
recharge areas that we may not be able to protect under our traditional 
tools (e.g., sections 7 and 10 of the Act). Further, water quality 
protection is a crucial element of conservation for the Georgetown 
salamander. Because the best available information does not allow us to 
determine the exact amount of water quality protection needed to 
satisfy the life requirements of the Georgetown salamander, the 
adaptive management approach incorporated into UDC Appendix A provides 
a pathway to achieving our conservation goals for the species in the 
face of scientific uncertainty. Finally, this approach also encourages 
further cooperation between the Service and local government entities, 
enhancing our ability to work collaboratively with partners to further 
Georgetown salamander conservation.
    If an activity that may affect the species is not regulated by UDC 
11.07 or is not in accordance with UDC 11.07 and Appendix A, or a 
person or entity is not in compliance with all terms and conditions of 
UDC 11.07 and Appendix A and the activity would result in an act that 
would be otherwise prohibited under 50 CFR 17.31, then the general 
provisions of 50 CFR 17.31 and 17.32 for threatened species apply. In 
such circumstances, the prohibitions of 50 CFR 17.31 would be in 
effect, and authorization under 50 CFR 17.32 would be required. In 
addition, nothing in this 4(d) rule affects in any way other provisions 
of the Act, such as the designation of critical habitat under section 
4, recovery planning provisions of section 4(f), and consultation 
requirements under section 7.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 4(d) 
rule for the Georgetown salamander during two comment periods: February 
24 to April 25, 2014, and April 9 to May 11, 2015. We also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed 4(d) rule, draft environmental assessment, and chapter 
11.07 and Appendix A of the UDC during the respective comment periods.
    Over the course of the two comment periods, we received 39 comment 
submissions. All substantive information provided during these comment 
periods has either been incorporated directly into this final rule or 
is addressed below. Comments from peer reviewers and State agencies are 
grouped separately.

Peer Review Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion

[[Page 47423]]

from five knowledgeable individuals with scientific expertise that are 
familiar with the species, the geographic region in which the species 
occurs, and conservation biology principles. We received responses from 
two of the five peer reviewers. We reviewed all comments received from 
the peer reviewers for substantive issues and new information. These 
comments are addressed in the following summary and incorporated into 
the final rule as appropriate.
    (1) Comment: An additional buffer specifically associated with 
where Georgetown salamanders are found, to minimize direct impacts by 
people (and domestic pets), is critical. Fencing is often an effective 
way to mark the boundaries (and potentially reduce their footprint) of 
such a protective buffer.
    Our response: We agree that additional measures to protect 
Georgetown salamanders from the threat of trampling by people, pets, 
feral hogs, and livestock may contribute to the conservation of the 
species. However, as noted above, this 4(d) rule does not provide 
incidental take authority for all types of activities that may 
constitute take or harm of Georgetown salamanders. Rather, the 4(d) 
rule will promote the conservation of the species by helping to 
alleviate negative impacts that can occur from the threat of water 
quality degradation as a result of urbanization.
    (2) Comment: I am uncertain as to whether the fixed-width buffers 
are appropriate in all localities to achieve the desired level of 
protection. Protection of surface and groundwater resources in 
karstified area can be quite challenging, and, therefore, simplified 
metrics such as horizontal setbacks may not achieve the desired 
results. Adequate buffers would require an understanding of both the 
detailed hydrogeology and the dispersal patterns of the listed species. 
For the former, I would expect that areas upgradient of springs (a more 
immediate source of recharge) would be more important than downgradient 
areas, all else being equal, to the maintenance of adequate springflow. 
For the latter, I would expect that downgradient areas (where the 
emergent surface water flows) would be more important than upgradient 
areas for the direct support of habitat. How these two attributes 
interact to define a truly ``critical'' area of influence is 
undoubtedly complex, and a fixed-width buffer may be the best 
alternative at the present time. However, I would hope that improved 
understanding of these interactions would be a focus of the adaptive 
management effort.
    Our response: We agree and expect that improving the understanding 
of the detailed hydrogeology and dispersal patterns of the species will 
be a focus of the Working Group. Please see our response to Comment #8.
    (3) Comment: The stormwater-management requirements for protection 
of the Edwards Aquifer (UDC) are laudable, but they lag behind the 
current understanding, and readily available applications, of what 
constitutes stormwater ``best management practices'' of the 21st 
century. Particularly given the importance of maintaining aquifer 
recharge, I would expect to see on-site retention of the 95th 
percentile storm (as is already mandated for federal facilities) rather 
than just 85 percent reduction in total suspended solids.
    Our response: Because the on-site retention of the 95th percentile 
storm is a different type of stormwater measurement than 85 percent 
reduction in total suspended solids, it is difficult to compare the two 
in terms of water quality protection. However, we recognize that there 
may be more stringent water quality regulations that aim to remove more 
contaminants from stormwater runoff than the UDC. The adaptive 
management process will monitor the status of the species in response 
to implementation of the UDC and modify the regulations if more 
protective measures are needed to further reduce impacts to the 
species. At this time, we have determined that the UDC and Appendix A, 
which include the 85 percent reduction, are necessary and advisable for 
the conservation of the species (see Determination section above).
    (4) Comment: I recommend that there should be no exemptions to the 
water quality regulations. Every proposed change in land use should 
have some form of review to ensure compatibility with management goals.
    Our response: In general, deviations from the water quality 
regulations described in UDC 11.07 and the voluntary guidelines 
described in Appendix A of the UDC will not be covered under this 4(d) 
rule. Non-regulated activities, for example, are exempt from UDC 11.07 
and are, therefore, not covered under this 4(d) rule. However, 
variances from UDC 11.07 may be granted by the City of Georgetown in 
special circumstances. These variances from the spring and stream 
buffer requirements apply only to non-occupied sites and undergo review 
by the City of Georgetown staff and may be granted only if the variance 
is not contrary to the public interest, due to special conditions a 
literal enforcement of this regulation would result in unnecessary 
hardship, and the spirit of the regulation is observed and substantial 
justice is done, in accordance with UDC Section 2.05.010.A.6. No 
variances to Appendix A, which covers all occupied sites, of the UDC 
will be covered under this 4(d) rule. Individual variances to UDC 11.07 
that have been approved by the City of Georgetown can be tracked by the 
Working Group and incorporated into their discussions and 
recommendations on the adaptive management needed to attain 
conservation goals.
    (5) Comment: Geologic and soil studies should be performed by the 
community to delineate locations where shallow soil cover prevents 
conventional onsite wastewater disposal. Green infrastructure and low-
impact development should be required everywhere in Georgetown, Texas. 
This includes new development, redevelopment, and restoration projects.
    Our response: We agree that groundwater vulnerability studies and 
low-impact development will be beneficial for the Georgetown salamander 
and its habitat. These are helpful suggestions for the Working Group to 
consider as they evaluate the effectiveness of the UDC conservation 
measures.
    (6) Comment: The community should track water quality and flow at 
selected springs and streams in order to develop long-term databases 
able to detect changes.
    Our response: We agree that water quality and quantity monitoring 
conducted in a manner that is able to detect changes needs to be a 
priority for the Working Group. Williamson County is currently 
monitoring salamander abundance and basic water chemistry (for example, 
temperature, dissolved oxygen, and specific conductance) at three sites 
with plans to add more monitoring sites in the future.

Comments From States

    (7) Comment: We urge the Service to finalize and implement this 
proposed rule as efficiently as possible while following a transparent 
process in order to provide regulatory certainty.
    Our response: By requesting input from the public on this 4(d) rule 
during two public comment periods, one 60-day and a second 30-day, we 
believe the rulemaking process has been transparent.
    (8) Comment: Spring buffers and other water quality protection 
policies should be aligned with the hydrogeology that most directly 
influences conditions for the species' survival. It also appears that 
the current buffer strategy may unduly

[[Page 47424]]

restrict landowners in some areas that do not influence survival 
conditions for the species while potentially not affording protection 
to other areas that do influence survival conditions. We believe the 
proposed rule affords the [Adaptive Management] Working Group the 
latitude to study these spring buffers and offer alternative 
recommendations if new science dictates that changes should be made.
    Our response: The specific hydrogeology (for example, recharge 
area) for each site occupied by the Georgetown salamander has not been 
determined. The Act requires that we use the best available information 
and does not require that we conduct research to develop new science. 
In the absence of this information, we believe a fixed-width buffer is 
the best alternative for protecting these sites. As new information is 
discovered, the conservation measures can be modified through the 
adaptive management process.
    (9) Comment: Conservation measures detailed in the UDC are limited 
to ``Occupied Sites'' with currently known populations. Conservation 
measures would not apply to newly discovered occupied sites. Since 
newly discovered sites could be important to the recovery of the 
species, we request that the Service clarify the applicability of the 
4(d) rule to these sites and the role the Working Group should play in 
this regard.
    Our response: In this final rule, we have clarified that any site 
determined to be occupied by Georgetown salamanders in the future will 
be considered ``occupied'' and the protective measures outlined in 
Appendix A of the UDC must be followed in order to be covered under 
this 4(d) rule. We recommend that the Working Group make efforts to 
survey suitable habitat within the range of the Georgetown salamander 
to identify all sites occupied by the species.
    (10) Comment: It is unclear whether a landowner owning a newly 
discovered site occupied by Georgetown salamanders outside the City of 
Georgetown's extra-territorial jurisdiction would be covered for 
incidental take if [s]he were to conduct activities consistent with the 
conservation measures contained in the UDC. Regulatory predictability 
and incidental take coverage for all affected landowners are important 
for the ultimate recovery of the species.
    Our response: Regulated activities located outside of the City of 
Georgetown's jurisdiction are not covered by the UDC. Therefore, only 
incidental take from those activities that are in the City of 
Georgetown's jurisdiction are potentially exempt from take prohibitions 
through this 4(d) rule. All currently known Georgetown salamander sites 
are covered by the UDC.

Public Comments

    (11) Comment: The proposed revised 4(d) rule states that the 
boundaries of the stream buffer coincides with the boundaries of the 
FEMA or calculated floodplain, but may be no smaller than [61 m (200 
ft)] in width. It should be noted that, while the stream buffer varies 
depending on the size of the stream (size of the stream is based on the 
size of the drainage area, which influences the size of the 
floodplain), there may be situations under the UDC where the stream 
buffer is smaller than [61 m (200 ft)] in width.
    Our response: Per the UDC 11.07, only stream buffers without FEMA 
or calculated floodplains may be no smaller than 61 m (200 ft) in 
width. We have made the appropriate clarification in this final rule.
    (12) Comment: The proposed exemption from prohibitions, as it will 
be outlined in Sec.  17.43(e)(2) of [title 50 of] the CFR, states that 
``incidental take of the Georgetown salamander will not be considered a 
violation of section 9 of the Act if the take occurs on privately 
owned, State, or county land. . . .'' This exemption must include, at a 
minimum, city-owned property.
    Our response: We have edited the exemption to include all non-
Federal land.
    (13) Comment: The proposed rule, if finalized, could not be amended 
substantially unless and until the Service allowed for public comment 
and input. Public input would not be allowed to a greater degree in 
connection with an incidental take permit than it has been in 
connection with the proposed rule.
    Our response: This is correct. Future changes to the content of 
this 4(d) rule require a public notice and comment period. However, 
future changes related to the conservation of the Georgetown salamander 
may be made to the conservation measures in UDC Appendix A, without 
public notice and comment, if they are agreed upon by the Working Group 
through the adaptive management process outlined in the UDC, provide 
equal or greater conservation benefits to the Georgetown salamander, 
and are approved by the Service.
    (14) Comment: The proposed rule does not exempt any set of 
activities in the ``red zone.'' The proposed rule does not pick apart 
who is regulated or not. Rather, it focuses on actual implementation of 
water quality measures consistent with those set forth in the UDC and 
listed in the proposed rule. A non-regulated entity can presumably meet 
the standard set forth in the proposed rule, not because such an 
activity is exempt from regulations, but because it would have 
affirmatively implemented the water quality measure set forth in the 
proposed rule and UDC. While it is true that the UDC applies only to 
regulated activities, the exemption from take in the proposed rule 
applies to all activities (and only those activities), regulated or 
not, that are consistent with the conservation measures in the UDC; 
that is, activities for which the project proponent has performed a 
geologic assessment, abided by the limitations described in the UDC for 
no-disturbance and minimal-disturbance zones, established buffers 
around springs and streams, etc.
    Our response: The UDC 11.07 and Appendix A were specifically 
designed for regulated activities. Other kinds of non-regulated 
activities could have different impacts not addressed with this set of 
measures. Non-regulated activities that voluntarily follow the UDC 
11.07 or Appendix A are not covered by this final 4(d) rule, and 
project proponents may choose to work with the Service to obtain take 
coverage.
    (15) Comment: The Service should permit take under section 10 
rather than adopt a special 4(d) rule because the resulting HCP cannot 
be weakened through amendment (unlike the City of Georgetown UDC), the 
section 10 process provides greater protections for the salamanders 
compared to the City of Georgetown UDC, and the process provides an 
open process in which the public can be involved.
    Our response: Section 10 permits are voluntary, are tailored 
towards individual applicants, would only cover known occupied sites, 
and have different criteria for permit issuance than the Act requires 
for issuance of a 4(d) rule. It is not certain that the Service would 
receive applications for section 10 permits that would provide greater 
protections for the Georgetown salamander over the entire range of the 
species. The 4(d) rule provides a landscape-level approach that is 
consistently implemented throughout the range of the Georgetown 
salamander, including unoccupied sites.
    While it is true that the conservation measures in UDC Appendix A 
may be revised, those changes would not be covered under this 4(d) rule 
unless they are agreed upon by the Working Group through the adaptive 
management process outlined in the UDC, provide

[[Page 47425]]

equal or greater conservation benefits to the Georgetown salamander, 
and are approved by the Service. In addition, we have a ``No 
Surprises'' policy for section 10 incidental take permits, which 
states, if unforeseen circumstances occur during the life of an HCP, 
the Service will not require additional lands, additional funds, or 
additional restrictions on lands or other natural resources released 
for development or use, from any permittee, who in good faith is 
adequately implementing or has implemented an approved HCP. This policy 
makes HCPs less flexible in terms of requiring more stringent 
conservation measures over time in response to new information. Given 
the amount of uncertainty in how best to protect Georgetown salamander 
habitat quality at individual sites, the flexibility provided in the 
adaptive management approach of the UDC is desirable.
    We believe the development of this 4(d) rule has been an open 
process comparable to that of a section 10 permit process. In addition, 
the process of amending the UDC is very transparent, involving monthly 
meetings of the Unified Development Code Advisory Committee that are 
open to the public with minutes and agendas posted online (https://government.georgetown.org/unified-development-code-advisory-board-2/).
    (16) Comment: The 4(d) rule allows degradation of water quality 
and, therefore, is not necessary and advisable for the conservation of 
the Georgetown salamander.
    Our response: The protective measures provided for in the 4(d) rule 
are intended to address the threat of water quality degradation from 
urbanization throughout the range of the species. We have found that 
the 4(d) rule positively contributes to the recovery of the Georgetown 
salamander by addressing the primary threat to the species and that 
these measures are ``necessary and advisable for the conservation'' of 
the Georgetown salamander (see Determination section above).
    (17) Comment: Numerous activities that may degrade water quality 
are entirely exempted and, therefore, allowed within the zones and 
buffers described in the City of Georgetown UDC. The Service should 
exempt only ``regulated activities'' because those are the only 
activities that are actually regulated by the UDC. In this way, threats 
such as oil and gas activities, agricultural operations, and 
residential developments on lots greater than 2 ha (5 ac), which are 
currently unregulated and, therefore, do not contribute to the 
conservation of the salamander, would not receive the benefit of 
protection from incidental take.
    Our response: We agree and have clarified this issue in the final 
4(d) rule. Also, please see our response to Comment #14.
    (18) Comment: Because the proposed special rule references the 
Ordinance instead of prescribing all the necessary conservation 
measures, the City could receive the benefits of protection from 
section 9 even if the City weakens the Ordinance through amendment. To 
solve this problem, the Service must use the section 10 process, 
describe all the necessary conservation measures in the Ordinance, or 
modify the 4(d) rule to state on its face what is and what is not 
authorized. At a bare minimum, the agency must specifically reference 
the version of the Ordinance adopted on December 20, 2013.
    Our response: The final rule clarifies that modifications to UDC 
Appendix A are covered under the 4(d) rule only if they are agreed upon 
by the Working Group through the adaptive management process, provide 
equal or greater conservation benefits to the Georgetown salamander, 
and are approved by the Service. In order to allow this important 
adaptive management process to be implemented, we have revised the 
final 4(d) rule to note that the provisions apply only to Service-
endorsed versions of UDC 11.07 and Appendix A.
    (19) Comment: It concerns us that the proposed 4(d) special rule is 
proceeding without scientific peer review.
    Our response: Although our February 24, 2014, proposed 4(d) rule 
announced that we were not conducting a peer review, we did conduct a 
peer review of the proposed 4(d) rule during the second comment period 
(April 9, 2015, to May 11, 2015). We requested peer review from five 
water quality protection experts and received reviews from two of the 
five. The peer reviews, along with the other comments and materials we 
received, are available on the Internet at http://www.regulations.gov 
under Docket No. FWS-R2-ES-2014-0008.
    (20) Comment: The UDC will not protect the quantity of spring flows 
or threats to water quality from points more distant than 50-300 m 
(164-984 ft) from spring sites. The UDC on which the proposed 4(d) rule 
is based does not adequately protect groundwater quality, including 
recharge features, caves, conduits, or local aquifers. The only 
substantive contribution made by the UDC is to decrease the probability 
of wholesale destruction by physical disturbance of occupied springs, 
but that is just one of many threats to the species.
    Our response: We believe the regulations in the UDC provide some 
protections to recharge features and water quality in the aquifer as a 
whole, primarily through the required stream buffers. Although the UDC 
addresses water quality, regulating every threat to the species is 
outside the scope of the UDC. In addition, as affirmed in State of 
Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule need not 
address all the threats to the species. Activities that are not covered 
by this 4(d) rule and that may result in take to the species would need 
to be covered through sections 7 or 10 of the Act.
    (21) Comment: The UDC does not specify whether any new population 
discoveries in the future will be treated as ``Edwards Springs'' with a 
50-m (164-ft) buffer or as occupied sites with a 300-m (984-ft) buffer. 
Furthermore, the UDC does not require population surveys for salamander 
presence in currently occupied sites or at sites that are currently 
thought to be unoccupied. Therefore, it provides zero protection for 
spring sites that are determined in the future to be occupied by 
salamanders.
    Our response: We have clarified in the final 4(d) rule that any 
site determined to be occupied by Georgetown salamanders in the future 
will be considered ``occupied'' and require the protective measures 
outlined in Appendix A of the UDC to be covered under this 4(d) rule.
    (22) Comment: Under the 4(d) rule, the Service should allow the 
City of Georgetown to conduct all technical reviews related to 
compliance with the UDC, including review and approval of subdivision 
plats, site plans, or other plans to be in compliance with the UDC. The 
UDC already requires that all development within the salamanders' known 
distribution may not begin until a geologic assessment has been 
conducted and accepted by the City and all project plats, site plans, 
and infrastructure construction plans reflect occupied springs and 
required buffers. The City of Georgetown is the logical entity to 
conduct this review under the UDC, as City staff are the most 
knowledgeable about local codes, ordinances, and environmental 
conditions and will ensure technical reviews comply with the UDC.
    Our response: The City of Georgetown will implement and enforce the 
regulations in chapter 11.07 of the UDC. The City, with assistance of 
the Working Group (comprising representatives from the City of 
Georgetown, Williamson County, Texas Commission on

[[Page 47426]]

Environmental Quality, Texas Parks and Wildlife Department, university 
scientists, private real estate developers, and the Service), will also 
review and approve projects that wish to follow the guidelines 
described in Appendix A of the UDC. The Service has no intention of 
reviewing individual projects unless the developers wish to obtain an 
incidental take permit through section 10, or if a Federal nexus exists 
through section 7, instead of following the UDC.
    (23) Comment: The required buffers will not infringe too seriously 
on Georgetown residents. The ``Minimal-Disturbance Zone'' will allow 
those who wish to live near rivers and springs that are the 
salamander's habitats to do so, as long as the residential areas are 
low density. Recreational activities like fishing or boating would not 
be severely limited either, as the ``No-Disturbance Zone'' on the river 
stretches only [80 m (262 ft)] in either direction. This is a 
significant buffer for the salamander, but it is not a far distance for 
humans to traverse.
    Our response: The ``No-Disturbance Zone'' of Appendix A of the UDC 
does not apply to recreation activities. Only regulated activities (as 
defined in title 30, Texas Administrative Code, section 213.3(28)) are 
prohibited within this zone.
    (24) Comment: Stream buffers of at least 23 m (75 ft) may not be 
large enough to considerably reduce water pollution. Salamanders are 
affected by slight changes in pH and increase of chemicals in the 
water. The small population sizes of Georgetown salamanders greatly 
increase their risk of extinction. Therefore, more studies on the 
biology and population demographics of this species should be performed 
before additional urban development is allowed near these crucial 
habitat sites.
    Our response: The adaptive management process is a component of 
chapter 11.07 and Appendix A of the UDC that allows changes to the 
regulations in response to new information. If there is adequate 
evidence that the current regulations are not protective enough for the 
Georgetown salamander, the Working Group will recommend changes to the 
UDC that meet the overall management goals.
    (25) Comment: This plan essentially provides a loophole for 
developers to continue construction if they survey the area themselves. 
There is no outside authority to check if salamander habitat will be 
disturbed. This could potentially allow for corrupt results of the 
investigation to be passed off as legitimate.
    Our response: This 4(d) rule does not provide a loophole, because 
all individual project proponents continue to be responsible for 
determining impacts on listed species and seeking the appropriate take 
coverage based on their determination.
    (26) Comment: If the development is single-family residential, two-
family residential, or on a lot smaller than 2 ha (5 ac), the 
assessment from the Federal Government would be waived. Any 
construction, no matter how small it may be, will have an impact on the 
environment.
    Our response: There is no Federal Government assessment that would 
be waived from residential developments. Geologic assessments (which 
have to be completed under the UDC 11.07 regulations) are not required 
to be submitted to the City of Georgetown if the proposed development 
is a small (less than 2-ha (5-ac)) single-family and two-family 
residential development located in a small (25.9-ha (64-ac)) watershed. 
However, these developments are required to implement all other UDC 
water quality measures.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this final 4(d) rule in a manner 
consistent with these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. Thus, for a regulatory 
flexibility analysis to be required, impacts must exceed a threshold 
for ``significant impact'' and a threshold for a ``substantial number 
of small entities.'' See 5 U.S.C. 605(b). Based on the information that 
is available to us at this time, we certify that this regulation will 
not have a significant economic impact on a substantial number of small 
entities. The following discussion explains our rationale.
    On February 24, 2014 (79 FR 10236), we published the final 
determination to list the Georgetown salamander as a threatened 
species. That rule became effective on March 26, 2014. As a result, the 
Georgetown salamander is currently covered by the full protections of 
the Act, including the full section 9 prohibitions that make it illegal 
for any person subject to the jurisdiction of the United States to take 
(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or attempt to engage in any such conduct), import or export, 
ship in interstate commerce in the course of commercial activity, or 
sell or offer for sale in interstate or foreign commerce any wildlife 
species listed as an endangered species, without written authorization. 
It also is illegal under section 9(a)(1) of the Act to possess, sell, 
deliver, carry, transport, or ship any such wildlife that is taken 
illegally. Prohibited actions consistent with section 9 of the Act are 
outlined for threatened species in 50 CFR 17.31(a) and (b). This final 
4(d) rule states that all prohibitions in 50 CFR 17.31(a) and (b) will 
apply to the Georgetown salamander, except regulated activities that 
are conducted consistent with the water quality protective measures 
contained in Chapter 11.07 and Appendix A of the Unified Development 
Code, which would result in a less restrictive regulation under the 
Act, as it pertains to the Georgetown

[[Page 47427]]

salamander, than would otherwise exist. For the above reasons, we 
certify that the final rule will not have a significant economic impact 
on a substantial number of small entities. Therefore, a final 
regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This final rule will not produce a Federal mandate. In general, 
a Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    (b) This 4(d) rule promulgates that all prohibitions in 50 CFR 
17.31(a) and (b) will apply to the Georgetown salamander, except 
activities that are conducted consistent with the water quality 
protection measures contained in Chapter 11.07 and Appendix A of the 
Unified Development Code, which would result in a less restrictive 
regulation under the Act, as it pertains to the Georgetown salamander, 
than would otherwise exist. As a result, we do not believe that this 
rule would significantly or uniquely affect small governments. 
Therefore, a Small Government Agency Plan is not required.

Takings

    In accordance with Executive Order 12630, this final rule will not 
have significant takings implications. We have determined that the rule 
has no potential takings of private property implications as defined by 
this Executive Order because this 4(d) rule will result in a less-
restrictive regulation under the Endangered Species Act than would 
otherwise exist. A takings implication assessment is not required.

Federalism

    In accordance with Executive Order 13132, this final 4(d) rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. This rule will not have substantial direct 
effects on the State, on the relationship between the Federal 
Government and the State, or on the distribution of power and 
responsibilities among the various levels of government.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this final rule does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of the Order.

Energy Supply, Distribution or Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking actions that significantly affect 
energy supply, distribution, and use. For reasons discussed within this 
final rule, we believe that the rule will not have any effect on energy 
supplies, distribution, and use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

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

    This rule does not contain 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 information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have prepared a final environmental assessment, as defined under 
the authority of the National Environmental Policy Act of 1969. For 
information on how to obtain a copy of the final environmental 
assessment, see ADDRESSES, above.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. We determined that there are no known 
tribal lands within the range of the Georgetown salamander.

Authors

    The primary authors of this final rule are the staff members of the 
Austin 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 set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.


[[Page 47428]]



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2. Amend Sec.  17.43 by adding paragraph (e) to read as follows:


Sec.  17.43  Special rules--amphibians.

* * * * *
    (e) Georgetown salamander (Eurycea naufragia).
    (1) Prohibitions. Except as noted in paragraph (e)(2) of this 
section, all prohibitions and provisions of Sec. Sec.  17.31 and 17.32 
apply to the Georgetown salamander.
    (2) Exemptions from prohibitions. Incidental take of the Georgetown 
salamander will not be considered a violation of section 9 of the Act 
if the take occurs on non-Federal land from regulated activities that 
are conducted consistent with the water quality protection measures 
contained in chapter 11.07 and Appendix A of the City of Georgetown 
(Texas) Unified Development Code (UDC), as endorsed by the U.S. Fish 
and Wildlife Service.
* * * * *

    Dated: July 28, 2015.
 Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-19335 Filed 8-6-15; 8:45 am]
 BILLING CODE 4310-55-P