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


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC22


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of extension.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) gives notice that 
the deadline to determine whether the Barton Springs salamander 
(Eurycea sosorum) is an endangered species under the Endangered Species 
Act of 1973 (Act), as amended, is extended for a period not to exceed 
August 30, 1996.

DATES: The new deadline for final action on the proposed listing of the 
Barton Springs salamander as an endangered species is August 30, 1996. 
The public comment period on this proposed listing was closed on July 
10, 1996 by virtue of an order issued on that date by the United States 
District Court for the Western District of Texas.

ADDRESSES: Inquiries regarding the proposed listing should be sent to 
the U.S. Fish and Wildlife Service, Austin Ecological Services Field 
Office, 10711 Burnet Road, Suite 200, Austin, Texas 78758. Comments and 
materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and 
Wildlife Service, Ecological Services, 10711, Burnet Road, Suite 200, 
Austin, Texas 78758 (512) 490-0057, facsimile (512) 490-0974.

SUPPLEMENTARY INFORMATION:

Background

    The Service published a proposed rule to list the Barton Springs 
salamander as an endangered species on February 17, 1994 (59 FR 7968). 
As set forth in the proposal, the primary threat to this species is 
contamination of the waters that supply Barton Springs by potential 
catastrophic events and chronic degradation resulting from urban 
activities. Also of concern are disturbances to the salamander's above-
ground springhead habitats (the waters in Barton Springs, Eliza Pool, 
and Sunken Garden Springs) and reduced groundwater supplies resulting 
from increased groundwater withdrawal.
    The comment period on the proposed listing originally closed April 
18, 1994. It was reopened May 26, 1994 and closed July 1, 1994 (59 FR 
27257; May 26, 1994). On March 19, 1995, the Service published a notice 
extending the deadline for final action on this proposed listing for a 
period of up to six months and the public comment period was reopened 
until May 17, 1995 (60 FR 13105). The notice indicated this extension 
was necessary because, ``during the comment periods and subsequent to 
the close of comment on this proposal, the Service received 
recommendations and information relevant to a final decision on the 
listing of the salamander. In order to adequately incorporate all 
pertinent information in the deliberation leading

[[Page 38703]]

to a decision and to ensure an opportunity for public comment on as 
complete an administrative record as possible, the deadline for final 
action on this proposal is being extended and the comment period 
reopened'' (60 FR 13105).
    In the July 10, 1996, Order of United States District Court for the 
Western District of Texas (``July 10 Order''), the court found that, 
``the extension was not valid because an extension under the ESA can 
only be granted by the Secretary based on a finding that there is 
substantial disagreement regarding the sufficiency and accuracy of the 
available data upon which the listing decision is to be made.'' 
Specifically, the court found that the need to consider a report by the 
Barton Springs/Edwards Aquifer Conservation District did not justify 
the extension. The court found that ``Congress determined that there 
must be substantial scientific disagreement in order to warrant an 
extension * * *.'' However, the Act indicates ``substantial 
disagreement'' is necessary for a six month extension to be appropriate 
and does not specify that disagreement must be scientific. In that the 
inadequacy of existing regulatory mechanisms is one of the five 
elements which the Service must consider in determining whether to list 
a species, 16 U.S.C. 1533(a)(1)(D), the Service believes that 
substantial disagreement concerning this aspect of the listing decision 
constitutes a valid basis for a six month extension since data 
regarding that element is ``relevant to the determination * * * 
concerned * * *.'' 16 U.S.C. 1533(b)(6)(B)(i).
    The court ordered the Secretary to make a decision whether to list 
the salamander as endangered, withdraw the listing, or extend the time 
to make a decision by no more than six months. The Secretary now finds 
that there exists substantial disagreement regarding the sufficiency or 
accuracy of the data regarding the inadequacy of existing regulatory 
mechanisms upon which the listing decision is to be made.
    The court anticipated the possibility that the Secretary might opt 
for a six month extension and specified a method by which the six 
months should be calculated for the purposes of this listing. The court 
instructed the Secretary that in the event such an extension was deemed 
warranted, that, ``the six month period began on February 17, 1995, 
(the date upon which the Secretary was to make some determination) and 
continues until April 10, 1995 (the starting date of the moratorium--54 
days). The six month period commenced again on April 26, 1996, when the 
President waived the budget moratorium. Therefore, the six month 
extension, if invoked, expires on August 30, 1996'' July 10 Order at 7. 
Since the Southwest Region identified processing the final 
determination for the Barton Springs salamander as its highest priority 
under the listing priority guidance (61 FR 24722; May 16, 1996), the 
Service intends to issue a final determination by August 30, 1996.
    Section 4(b)(6)(I) of the Act indicates that the Secretary may 
extend the one year period following proposal for six months ``for 
purposes of soliciting additional data.'' The Service is unable to 
solicit additional data at this time since the court has ordered the 
comment period, which the Service reopened on June 24, 1996 (61 FR 
32413), closed effective July 10, 1996, the date of its order. At the 
time the Service reopened the comment period, however, it justified 
that action by noting the need to obtain additional information on 
``proposed regulatory protection under State authorities including 
water quality protection zones, nonpoint source pollution programs, 
monitoring, and Edwards Aquifer-specific actions * * *. To evaluate 
effectively whether the existing regulatory structure may adequately 
protect the species, the Service must obtain further information on 
these developments'' (61 FR 32414). The Service also reprinted two 
letters, one from the Texas Natural Resources Conservation Commission 
and one from Valarie Bristol, Travis County Commissioner, requesting 
the comment period be reopened and noting regulatory initiatives 
concerning which information should be gathered. In the notice 
reopening the comment period, the Service advised interested parties to 
submit any information as soon as possible because the comment period 
might be closed by the courts without advance notice. As described 
previously, the U.S. District Court for the Western District of Texas 
did order the comment period closed on July 10, 1996. However, during 
the two weeks the comment period was open, the Service received five 
comment letters, including comments from three Texas state regulatory 
agencies. Three of these comments referred specifically to the adequacy 
of existing regulatory mechanisms. Therefore, while the Service will 
not be able to seek additional information subsequent to the finding 
the Secretary makes today, the Service believes the public was given an 
opportunity to provide additional information in the very recent past. 
During the next several weeks, the information received during the 
comment period will be analyzed and the comments responded to in the 
final decision document, thus fulfilling the goal of the six month 
extension and assuring that the Service will appropriately evaluate the 
five factors provided in section 4 of the Act. Such consideration would 
not be possible if the Service were to make a final decision regarding 
the proposal to list the Barton Springs salamander as endangered by 
July 23, 1996, as required by the July 10 Order in the absence of a six 
month extension.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: July 18, 1996.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 96-18685 Filed 7-24-96; 8:45 am]
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