[Federal Register Volume 77, Number 191 (Tuesday, October 2, 2012)]
[Proposed Rules]
[Pages 60179-60206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23854]



[[Page 60179]]

Vol. 77

Tuesday,

No. 191

October 2, 2012

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; 12-Month Petition 
Finding, Listing of the Spring Pygmy Sunfish as Threatened, and 
Designation of Critical Habitat; Proposed Rule

Federal Register / Vol. 77 , No. 191 / Tuesday, October 2, 2012 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2012-0068; 4500030113]
RIN 1018-AY19


Endangered and Threatened Wildlife and Plants; 12-Month Petition 
Finding, Listing of the Spring Pygmy Sunfish as Threatened, and 
Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: 12-Month finding; proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list the spring pygmy sunfish 
(Elassoma alabamae) as threatened under the Endangered Species Act of 
1973, as amended (Act), and to designate critical habitat. After review 
of all available scientific and commercial information, we find that 
listing the spring pygmy sunfish as a threatened species under the Act 
is warranted. Accordingly, we propose to list the spring pygmy sunfish 
as a threatened species throughout its range and designate critical 
habitat for the species under the Act. In total, we propose 
approximately 8 stream miles (mi) (12.9 kilometers (km)) and 1,617 
acres (ac) (654.4 hectares (ha)) of spring pool and spring-influenced 
wetland in Limestone County, Alabama, for designation as critical 
habitat.

DATES: We will consider comments received or postmarked on or before 
December 3, 2012. We must receive requests for a public hearing, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by November 16, 2012. Comments submitted electronically using 
the Federal eRulemaking Portal (see ADDRESSES section, below) must be 
received by 11:59 p.m. Eastern Time on the closing date.

ADDRESSES:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R4-ES-2012-0068, which 
is the docket number for this rulemaking.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2012-0068; Division of Policy and 
Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more details).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/mississippiES/, http://www.regulations.gov at Docket No. FWS-R4-ES-
2012-0068, and at the Mississippi Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this critical habitat designation 
will also be available at the above locations.

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, 
Mississippi Ecological Services Field Office, 6578 Dogwood View 
Parkway, Jackson, MS 39213; by telephone (601-321-1122); or by 
facsimile (601-965-4340). If you use a telecommunications device for 
the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: This document consists of: (1) A 12-month 
petition finding that listing the spring pygmy sunfish under the Act is 
warranted; (2) a proposed rule to list the spring pygmy sunfish as 
threatened; and (3) a proposed rule to designate critical habitat for 
this species.

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, 16 
U.S.C. 1531 et seq., a species or subspecies may warrant protection 
through listing if it is endangered or threatened throughout all or a 
significant portion of its range. We are proposing to list the spring 
pygmy sunfish as threatened under the Act because of current and future 
threats, and listing can only be done by issuing a rule. The spring 
pygmy sunfish no longer occurs at two of the three spring systems in 
which it historically was found, and faces a variety of threats in the 
Beaverdam Spring/Creek System, the only location where it currently 
occurs. We are also proposing to designate critical habitat under the 
Act. Critical habitat represents geographical areas that are essential 
to a species' conservation, and is designated on the basis of the best 
scientific information available after taking into consideration the 
economic impact, impact on national security, and any other relevant 
impact of specifying any particular area as critical habitat.
    The basis for our action. Under the Act, a species may be 
determined to be endangered or threatened based on any of five factors: 
(A) 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. The spring pygmy sunfish is facing 
threats due to three of these five factors (A, D, and E), and 
potentially faces threats under a fourth (Factor C.) The Act also 
requires that the Service designate critical habitat at the time of 
listing provided that it is prudent and determinable. We have 
determined that it is both prudent and determinable (see Critical 
Habitat section below) and are proposing approximately 8 stream mi 
(12.9 km) and 1,617 ac (654.4 ha) of spring system habitat and adjacent 
upland buffers for designation as critical habitat.
    Peer review is important. In addition to seeking public comments, 
we will solicit peer review of this proposal from at least three 
experts knowledgeable in spring pygmy sunfish biology and basic 
conservation biology principles and concepts.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned Federal and State 
agencies, the scientific community, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Additional information concerning the historical and current 
status, range, distribution, and population size of the spring pygmy 
sunfish, including the locations of any additional populations.
    (2) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    (5) Additional information regarding the threats to the species 
under the five listing factors, which are:

[[Page 60181]]

    (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; and
    (e) Other natural or manmade factors affecting its continued 
existence.
    (6) Any information regarding ongoing conservation activities for 
the spring pygmy sunfish, including the Belle Mina Farm, Ltd., 
candidate conservation agreement with assurances (CCAA), and their 
effect on the status of the species.
    (7) The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act, including the 
possible risks or benefits of designating critical habitat, including 
risks associated with publication of maps designating any area on which 
this species may be located, now or in the future, as critical habitat.
    (8) The following specific information on:
    (a) The amount and distribution of habitat for spring pygmy 
sunfish;
    (b) What areas, that would be occupied at the time of listing 
(i.e., are currently occupied) and that contain the physical and 
biological features essential to the conservation of this species, 
should be included in a critical habitat designation and why;
    (c) Special management considerations or protection that may be 
needed for the essential features in critical habitat areas, including 
managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of this species and why.
    (9) Information on the projected and reasonably likely impacts of 
changing environmental conditions resulting from climate change on the 
species and its habitat.
    (10) Information on groundwater aquifer or recharge areas for 
spring systems that support the spring pygmy sunfish, and the possible 
implications of extracting ground and surface water and its impact on 
the spring pygmy sunfish and its habitat.
    (11) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (12) Information on whether the benefits of the exclusion of lands 
covered by the Belle Mina Farm, Ltd., CCAA, or any other particular 
area, outweigh the benefits of inclusion under section 4(b)(2) of the 
Act.
    (13) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available,'' and section 4(b)(2) directs that critical 
habitat designations be made based on the best scientific data 
available and after consideration of economic and other relevant 
impacts.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, such as your address, 
phone number, and email address, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy submissions on http://www.regulations.gov. Please include 
sufficient information with your comments to allow us to verify any 
scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Mississippi Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(B) of the Act requires that, for any petition to 
revise the Federal Lists of Threatened and Endangered Wildlife and 
Plants (Lists) that contains substantial scientific or commercial 
information that listing a species may be warranted, we make a finding 
within 12 months of the date of receipt of the petition that the 
petitioned action is either: (a) Not warranted; (b) warranted; or (c) 
warranted, but the immediate proposal of a regulation implementing the 
petitioned action is precluded by other pending proposals to determine 
whether any species is endangered or threatened, and expeditious 
progress is being made to add or remove qualified species from the 
Lists. With this publication, we have determined that the petitioned 
action to list spring pygmy sunfish is warranted, and we are proposing 
to list the species and to designate critical habitat for the species.

Previous Federal Actions

    The spring pygmy sunfish was proposed for listing as endangered 
with critical habitat on November 29, 1977 (42 FR 60765). The critical 
habitat portion of the proposal was withdrawn on March 6, 1979 (44 FR 
12382), in order to make a new critical habitat proposal that conformed 
to new, more prescriptive provisions for critical habitat made in the 
1978 amendments to the Act. The Service proposed critical habitat again 
for the species on July 27, 1979 (44 FR 44418). The pending proposal to 
list the spring pygmy sunfish, along with the proposed critical habitat 
designation, were withdrawn effective November 29, 1979, as announced 
in the Federal Register on January 24, 1980 (45 FR 5782).
    The spring pygmy sunfish was included in the December 30, 1982, 
notice of review (47 FR 58454) as a category 2 candidate species for 
listing. Category 2 status was given to those species for which the 
Service possessed information indicating that proposing to list as 
endangered or threatened was possibly appropriate, but for which 
conclusive data on biological vulnerability and threats were not 
currently available to support proposed rules. Subsequently, in the 
September 18, 1985 (50 FR 37958); January 6, 1989 (54 FR 554); and 
November 15, 1994 (59 FR 58982) notices of review, the spring pygmy 
sunfish was identified as a category 1 candidate species for listing. 
Category 1 status was given to those species for which the Service had 
on file sufficient information on biological vulnerability and 
threat(s) to support a proposal to list as endangered or threatened but 
for which a proposal had not yet been issued because of other listing 
actions. On February 28, 1996 (61

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FR 7457), the Service published a notice of review removing the spring 
pygmy sunfish from the candidate list because of successful 
introduction, increased distribution (outside of the range of the 
introduction), and the discovery of additional populations, including 
one on Wheeler National Wildlife Refuge. At that time, we reported that 
the known populations, each exceeding 1,000 individuals, were 
increasing.
    On November 24, 2009, we received a petition from the Center for 
Biological Diversity (CBD) and Michael Sandel of the University of 
Alabama, requesting that the spring pygmy sunfish be listed as 
endangered under the Act. In a December 17, 2009, letter to the 
petitioners, we responded that we reviewed the information presented in 
the petition, and we outlined the petition process and timelines. In 
July 2010, we received letters from the North American Native Fishes 
Association (NANFA) and Dr. Bruce Stallsmith (University of Alabama at 
Huntsville) requesting that we emergency list the species under section 
4(b)(7) of the Act. Following review of the petition, the letters, and 
information in our files, we determined that issuing an emergency 
regulation temporarily listing the species was not warranted. We 
notified NANFA and Dr. Stallsmith of our determination on July 21, 
2010.
    On April 1, 2011, we published in the Federal Register (76 FR 
18138) our 90-day finding that the petition to list the spring pygmy 
sunfish as endangered presented substantial information indicating that 
the requested action may be warranted, and we initiated a status review 
of the species.
    Since 2010, Belle Mina Farms, the owner of Beaverdam Spring, Moss 
Spring, and the upper reach of Beaverdam Creek, in Limestone County, 
Alabama, and the Service have been engaged in drafting a candidate 
conservation agreement with assurances (CCAA) for a population of 
spring pygmy sunfish. The CCAA outlines a variety of conservation 
measures that will be implemented to benefit the species (see 
``Conservation Efforts to Reduce Habitat Destruction, Modification, or 
Curtailment'' under the Factor A discussion, below). On September 14, 
2010, we received the completed application from the landowner for an 
enhancement of survival permit for the spring pygmy sunfish under 
section 10(a)(1)(A) of the Act along with a draft CCAA. The CCAA, the 
permit application, and the environmental action statement (EAS) were 
made available for public comment for a 30-day period beginning on 
February 21, 2012 (77 FR 9958). The CCAA and EAS were finalized in 
April 2012, and the associated permit was issued on June 7, 2012. If 
the spring pygmy sunfish is listed under the Act, the permit authorizes 
incidental take of the spring pygmy sunfish due to otherwise lawful 
activities (e.g., crop cultivation, livestock grazing, silviculture, 
vegetation management, water usage, road maintenance, fencerow 
maintenance, etc.) in accordance with the terms of the CCAA.

Species Information

Taxonomy and Description
    The spring pygmy sunfish (Elassoma alabamae) was discovered in 
1937, but not described until 1993 (Mayden 1993, pp.1-14). This species 
is the smallest member of the genus Elassoma. Males are normally 
smaller than females and are very dark to black with iridescent blue-
green color on their sides, cheeks, and gill covers (Boschung and 
Mayden 2004, pp. 614-615). The maximum standard length (distance from 
tip of snout to the end of the last vertebrae) for adult males is 0.80 
in (20.4 mm) and for adult females it is 0.96 in (24.5 mm) (Boschung 
and Mayden 2004, pp. 614-615). Both sexes have broad vertical and 
narrow bars on their flanks. We accept the characterization of the 
spring pygmy sunfish as a valid species based on the taxonomic 
characters distinguishing the species from other members of the 
Elassoma genus (Mayden 1993, p.4). Its uniqueness is widely accepted by 
the scientific community, and there has been no discrepancy concerning 
its distinctiveness as a separate taxonomic entity (Boschung et al. 
2004, p. 614).
Current Distribution
    The range of the spring pygmy sunfish is very restricted. The 
species currently occupies about 5.9 mi (9.5 km) and 1,435 ac (580.6 
ha) of four spring pools and associated features confluent with the 
middle to upper Beaverdam Spring/Creek watershed. These spring pools, 
which include Moss, Beaverdam, Thorsen, and Horton springs, all in 
Limestone County, Alabama, along with associated spring runs and 
wetlands, are collectively referred to as the Beaverdam Spring/Creek 
system. The greatest concentration of spring pygmy sunfish occurs 
within the Beaverdam Spring site, which comprises 24 percent of the 
total occupied habitat for the species.
Life History
    The spring pygmy sunfish has high fecundity (reproductive capacity) 
and quickly populates areas of available habitat (Sandel pers. obs. 
2004 through 2009). Adults reproduce from January to October. Spawning 
occurs in March and April, when water quality parameters are within a 
suitable range (pH of 6.0 to 7.7 and water temperatures of 57.2 to 68 
degrees Fahrenheit ([deg]F) (15 to 20 degrees Celsius ([deg]C)). Spring 
pygmy sunfish produce about 65 eggs, and hatching occurs from April to 
September (Sandel pers. obs. 2004 through 2009). Two spawning attempts 
per year have been reported in captivity (Petty et al. 2011, p. 4). In 
captivity, the spring pygmy sunfish may live slightly longer than 2 
years, but normally their life span is 1 year or less (Boschung and 
Mayden 2004, pp. 614-615).
Habitat
    The spring pygmy sunfish is a spring-associated (Warren 2004, 
p.185) and groundwater-dependent (Jandebeur, pers. comm., 2011) fish 
endemic to the Tennessee River drainage in the Eastern Highland Rim 
physiographic province and Dissected Tablelands (Marbut et al. 1913, p. 
53) of Lauderdale and Limestone Counties in northern Alabama. The 
preferred habitat for the spring pygmy sunfish is colorless to slightly 
stained spring water, occurring within several components of spring 
geomorphology including the spring head (where water emerges from the 
ground), spring pool (water pool at spring head), spring run (stream or 
channel downstream of spring pool), and associated spring-fed wetlands 
(Warren 2004, pp. 184-185). No contemporary water flow rates 
characterizing groundwater flow from the springs are available. 
However, historical flow rates for Pryor Spring (where the species once 
occurred) and Moss Spring of 800 to 5,000 gallons per minute (gpm) 
(3,000 to 19,000 liters per minute (lpm))(tabulated from Chandler and 
Moore 1987, pp. 3-4), respectively, indicate that the spring pygmy 
sunfish is associated with moderately flowing springs of the second to 
fourth order (after Meinzer 1923, in Chandler and Moore 1987, p. 5; 
McMaster and Harris 1963, p. 28).
    Natural spring pool habitats are typically static, persisting 
without disruption for long periods, even during droughts, in the 
absence of water extraction. The species is most abundant at the spring 
outflow or emergence (spring head) and spring pool area. The spring 
pygmy sunfish is typically found at water depths from 5 to 40 inches 
(in) (13 to 102 centimeters (cm)) and rarely in the upper 5 inches (13 
cm) of the water column. Species of submergent and emergent vegetation 
providing important habitat for the spring pygmy sunfish include clumps

[[Page 60183]]

and stands of Sparganium sp. (bur reed), Ceratophyllum sp. (coontail), 
Nasturtium officinale (watercress), Juncus sp. (rush), Carex sp. 
(sedges), Nuphar luteum (yellow pond lily), Myriophyllum sp. (parrot 
feather), Utricularia sp. (bladderwort), Polygonum sp. (smartweed), 
Lythrum salicaria (purple loosestrife), and Callitriche sp. (water 
starwort) (Mayden 1993, p. 11; Jandebeur 1997, pp. 42-44; Sandel 2011, 
pp. 3-5, 9-11). The species is also associated with certain animal 
species such as amphipods, isopods, spring salamanders, crayfish, and 
snails (Sandel 2011, pp.11-12; Mayden 1993, p. 11).
Historical Distribution and Status
    The spring pygmy sunfish was known to have historically occurred at 
two other sites. This species was initially discovered in 1938, in Cave 
Springs, Lauderdale County, Alabama, where it was extirpated about a 
year later due to inundation from the formation of Pickwick Reservoir. 
In 1941, this species was also discovered in Pryor Spring within the 
Swan Creek watershed in Limestone County, Alabama, by Tarzwell and 
Bretton, where it was noted to be common (Jandebeur 2011a, pp. 1-5). 
Limited sampling efforts in the Pryor Springs complex between 1966 and 
1979 indicated a sparse population of spring pygmy sunfish west of, and 
none east of, Highway 31. The exact location of the original collection 
in Pryor Spring is uncertain, but Jandebeur (2011a, pp. 1-5) speculates 
the original site to be solely west of Highway 31, within the Pryor 
Spring Branch (spring-fed wetlands) and not in Pryor Spring proper 
(spring head and pool), east of the highway. However, in 1984, in an 
effort to enhance this population in Pryor Spring, fish were moved from 
Moss Spring (Beaverdam Spring/Creek System) into Pryor Spring on both 
sides of Highway 31 (Mettee et. al. 1986, pp. 14-15). Reintroduction 
efforts continued into 1986 and 1987 (Mettee et. al. 1986, pp. 6-7). 
However, by 2007, the population was determined to be extirpated due to 
impaired water quality and quantity, likely attributable to 
contaminants from agricultural runoff (Sandel 2008, p. 2; 2011, pp. 3, 
6).
    The spring pygmy sunfish exhibits metapopulation (a group of 
individual populations that have some level of gene flow between them) 
structure by occupying all suitable spring habitats where there is 
flowing spring water and connectivity. Migration and continuity of the 
species between spring pools is very important in maintaining the 
genetic diversity of species within these sections of the Beaverdam 
Spring/Creek system. Sandel (2008, pp. 15-16; 2011, p. 8) suggests that 
the spring pygmy sunfish population in Beaverdam Spring/Creek is a 
single, structured, continuous group of breeding individuals, 
genetically identifiable with limited gene flow from each springhead 
subpopulation, and that the loss of many subpopulations could cause 
extinction of the metapopulation. However, Jandebeur (2011b, pp. 1-13) 
speculates that these populations of spring pygmy sunfish evolved with 
beaver ecology and that during migration of spring pygmy sunfish from 
beaver pond habitats, the species may colonize or recolonize existing 
habitat downstream, even though individual subpopulations may be 
extirpated due to drought or other ecological issues.

Summary of Information Pertaining to the Five Factors

    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 following 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; and
    (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.
    In considering what factors might constitute threats to a species, 
we must look beyond the exposure of the species to a particular factor 
to evaluate whether the species may respond to that factor in a way 
that causes actual impacts to the species. If there is exposure to a 
factor and the species responds negatively, the factor may be a threat. 
The factor is a threat if it drives, or contributes to, the risk of 
extinction of the species such that the species warrants listing as 
endangered or threatened as those terms are defined in the Act. 
However, the identification of factors that could impact a species 
negatively may not be sufficient to compel a finding that the species 
warrants listing. The information must include evidence sufficient to 
suggest that these factors are operative threats that act on the 
species to the point that the species may meet the definition of 
endangered or threatened under the Act.

Factor A: The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Increased human population growth, and the accompanying demand for 
water, will likely alter the Beaverdam Spring/Creek system and its 
recharge areas through increased water extraction (pumping), diversion, 
and retention (Erman 2002, p. 8). Because springs provide shelter, 
thermal refuge, breeding sites, movement corridors, and prey source 
habitat for the spring pygmy sunfish, the species is dependent on water 
quantities sufficient to provide spring habitat that is stable and 
permanent (Erman 2002, p. 8).
Urban and Industrial Development
    Urban development adjacent to the Beaverdam Spring/Creek system 
would likely fragment and directly impact suitable spring pygmy sunfish 
habitat by decreasing water quality and quantity, and by limiting the 
species' movement throughout the system. When an area is urbanized, 
many impermeable surfaces are constructed such as roofs, pavements, and 
road surfaces. All are intentionally constructed to be far less 
permeable than natural soils and to remove stormwater quickly, which 
results in a reduction in direct recharge into the aquifer, increased 
stormwater runoff (Younger 2007, p. 39), immediate changes in water 
quality parameters such as decreased oxygen levels and increased 
temperature, and increased water quantity and flow velocity (Field et 
al. 2003, pp. 326-333). The stormwater flow velocity carries sediments 
that may scarify (make scratches or cuts in) rock and gravel substrates 
(Waters 1995, pp. 57, 66) and uproot aquatic vegetation, thereby 
destroying important foraging, spawning, and refuge habitat for the 
species (Field et al. 2003, pp. 326-333).
    The spring pygmy sunfish is currently facing threats from planned 
large-scale residential and industrial projects and ongoing development 
within the vicinity of the Beaverdam Spring/Creek watershed. Sandel 
(2011, p. 11) observed declines in the species' population and 
attributed it to sedimentation from two nearby construction activities: 
the construction of a new sewer line adjacent to the spring system and 
the construction of the Ashbury subdivision 2.3 mi (3.7 km) northeast 
of the species' habitat. The Ashbury subdivision, adjacent to Hardeman 
Branch and draining into the

[[Page 60184]]

upper Beaverdam Spring/Creek watershed, filled adjacent wetlands when 
residential housing, roads, utility crossings, and stormwater drains 
were constructed (U.S. Army Corps of Engineers 2011, pp. 1-6).
    The City of Huntsville's Master Plan for Western Annexed Land 
(Sasaki 2011, pp. 1-83) proposes developing a total of 10,823 ac 
(4,379.9 ha) adjacent to spring pygmy sunfish habitat. More than 68 
percent of the proposed development site is adjacent to the Beaverdam 
Spring/Creek watershed. The restricted-use area for subdivision 
development, within the City of Huntsville, is a minimum of 25 feet 
(7.6 meters) from the perimeter of a perennial spring. However, no 
restrictions are set forth for ephemeral springs or seasonal 
groundwater seepages (City of Huntsville 2007, p. 28), which include 
many of the ephemeral springs, seepages, and streams draining into the 
Beaverdam Spring/Creek watershed. These features are necessary for 
maintenance of seasonal flow rates. Filling them or converting them to 
developed areas could therefore adversely affect the spring pygmy 
sunfish. In addition, there are roads proposed to connect the planned 
developments with the Interstate 65 and Interstate 565 corridors 
(Sasaki 2011, pp. 1-83), along with feeder roads and improvements on 
primary and secondary existing roadways in support of new residential 
and industrial projects (Sasaki 2011, pp. 1-83). Developed, paved-over 
areas (impervious substrate) promote runoff and inhibit infiltration, 
changing water flow rates from slow and incremental to fast and 
localized, because stormwater is directed via surface routes into 
specific areas of the receiving stream, rather than infiltrating into 
the soil or draining naturally into surface water.
    Pumping or diversion of springs creates unstable conditions for 
spring-dependent species such as the spring pygmy sunfish through 
fluctuating water levels and temperature changes. The incremental and 
cumulative groundwater recharge effects on the habitat of the spring 
pygmy sunfish may not become evident for years (Likens 2009, p. 90). 
Within north Alabama, the availability of large quantities of 
groundwater from springs has been an important factor in industrial and 
urban development (Warman and Causey 1963, p. 93). It is estimated 
that, by 2015, the population in Limestone and Lauderdale Counties will 
increase dramatically (Roop 2010, p. 1), along with expanding 
urbanization and industrialization (Sasaki 2011, pp. 1-83).
    The Fort Payne Chert of the Early Mississippian Age is the 
principal aquifer of spring pygmy sunfish habitat and provides 
groundwater to all of Limestone County (McMaster and Harris, Jr. 1963, 
p. 1). Groundwater in the County is ultimately derived from percolation 
of precipitation (McMaster and Harris, Jr. 1963, p. 17) into the 
aquifer system. In urban settings, percolation of rainwater to the 
aquifer may be disrupted due to less pervious zones and more shunting 
of rainfall into stormwater systems (Healy 2010, pp. 70-72; Younger 
2007, pp. 117-121). Change in land use from rural to urban/industrial 
within the Beaverdam Spring/Creek area will be detrimental to the 
spring pygmy sunfish due to changes in the water quality parameters 
such as oxygen and temperature, along with changes in water quantity, 
such as increased stream flow and velocity, due to increased amounts of 
impervious materials and associated stormwater runoff in the watershed. 
This may be coupled with a subsequent reduction in precipitation 
infiltrating through the soil surface to the aquifer, which will 
ultimately reduce spring baseflow (Field et al. 2003, pp. 326-333; 
Healy 2010, p. 3).
Water Quantity
    Excessive groundwater extraction from the aquifer supplying 
Beaverdam Spring/Creek is a threat to the spring pygmy sunfish 
(Drennen, pers. obsv. 2007-2011; Sandel 2011, pp. 3-6; National Water 
Quality Assessment (NAWQA) program, http://tn.water.usgs.gov/lten/lten.html) because of the reduction of the water levels in the aquifer 
and resultant decreased spring outflow (Cook, Geological Survey of 
Alabama (GSA), pers. comm., 2011). Sandel (in Kuhajda et al. 2009, p. 
19; 2011, pp. 3-6) documented a relationship between pumping activities 
in Moss, Horton, and Thorsen Springs and degraded spring pygmy sunfish 
habitat. Specifically, in Thorsen Spring, during 2007, water was 
extracted to a level that destroyed vegetation and decreased the 
abundance of the spring pygmy sunfish by 99 percent (Sandel, pers. 
obs., 2004 through 2009; Sandel 2011, p. 6). The proximity of the 
spring pygmy sunfish's habitat to agricultural land throughout its 
range makes it vulnerable to impacts due to the extraction of 
groundwater for agricultural uses. Sandel (in Kuhajda et al. 2009, p. 
19) estimated that up to 16,000 gpm (62,000 lpm) of water was extracted 
from the Beaverdam Spring/Creek watershed for agricultural purposes 
during drought conditions during the 2008 growing season. He further 
estimated that this level of withdrawal desiccated and killed aquatic 
vegetation necessary for the spawning, foraging, and shelter of the 
species.
    Commercial water withdrawal from this same aquifer by the Limestone 
County pumping station, between 2006 and 2011, was over 1 billion 
gallons (3.9 billion liters) at an estimated flow rate of 450 gpm 
(1,740 lpm) (Holland, pers. comm., 2011). Heavy groundwater withdrawal 
by the cities of Huntsville and Madison (east of the spring pygmy 
sunfish habitat), and the adjacent rural population, is estimated at 16 
million gallons per day (62 million liters per day) (U.S. Geological 
Survey National Aquatic Water Quality Assessment 2001, 2009; Sandel, 
pers. comm., 2007-2009; Kingsbury 2003, p. 2; Hoos et al. 2001, p. 1). 
Withdrawal of groundwater by pumping, at high levels such as those 
above, especially during drought conditions, can cause changes to water 
budgets (Healy 2010, p. 15) and the natural flow of spring systems 
(Alley in Likens 2009, p. 91). Pumping from wells beside streams also 
lowers groundwater levels and reduces surface water flow within streams 
and spring runs. In smaller streams, decreased flow caused by pumping 
can be large enough to create harmful effects upon the stream and its 
wildlife (Hunt 1999, pp. 98-102). Water extraction by pumping also 
causes a loss of aquifer storage and lowers the pressure in the aquifer 
(Theis 1935, p. 519), resulting in decreased spring flow velocity and 
quantity to adjacent streams. These reductions in the natural flow 
regime can adversely affect the spring pygmy sunfish.
    In several large springs in the United States, groundwater 
extraction for public consumption and agricultural use has impacted 
listed fish species by decreasing groundwater levels. Examples include 
the endangered Devil's Hole pupfish (Cyprinodon diabolis) (Hoffman et 
al. 2003, p. 1248) and the endangered fountain darter (Etheostoma 
fonticola) (Service 1996, p. 19). Water extraction in spring pygmy 
sunfish habitat is causing desiccation and reduction of the aquatic 
vegetation, and concentrating pollutants.
    The effects on stream flow after water extraction stops may be 
greater due to the overall decrease in water quantity in the stream. 
Decreased water levels after pumping in the spring pool correspond to 
decreased aquatic vegetation in the system; less water quantity 
increases the desiccation of vegetation, which may negatively impact 
the species (Jandebeur 1979, pp. 4-8; Mayden 1993, pp. 11-12) by 
reducing the vegetative cover and contributing to eutrophication

[[Page 60185]]

of the water, as demonstrated with spring pygmy sunfish habitat impacts 
and subsequent population declines in Moss, Horton, and Thorsen Springs 
(Sandel pers. obs. 2004 through 2009; 2011, pp. 3-6).
Water Quality
    The heavy use of chemicals within spring pygmy sunfish habitat and 
the recharge areas of occupied spring systems is a potential threat to 
the species. The intensive agricultural practices and proposed 
urbanization and industrialization plans within the immediate area of 
the watershed threaten to contaminate the groundwater in the aquifer 
supplying the Beaverdam Spring/Creek site (Healy 2010, p. 70). 
Transportation of contaminants to the aquifer by recharge water can be 
slow and steady or highly episodic over time (Healy 2010, p. 75). In a 
similar spring system in northeast Alabama, the threatened pygmy 
sculpin (Cottus paulus) is believed to be impacted by the increased 
concentration of toxins entering the aquifer from a nearby military 
base (Thomas, pers. comm., 2009).
    Fertilizers and pesticides are transported to the aquifer by 
recharge, or into surface water routes, where they eventually enter 
springs and are a threat to the survival of fishes found there (Hoffman 
et al. 2003, p. 1248; U.S. Fish and Wildlife Service 1996, pp. 35-36). 
Toxins can concentrate when spring flow is reduced, posing an even 
greater threat to spring fishes. The Beaverdam Spring/Creek watershed 
has the highest annual crop harvest, the highest total annual nitrogen 
use, and second highest annual phosphorus use, along with elevated 
pesticide usages detected in groundwater, within the Eastern Highland 
Rim (Mooreland 2011, p. 2; NAWQA 2009, http://water.usgs.gov/nawqa/digmap.html; Kingsbury 2003, p. 20). Both the historic and extant 
spring pygmy sunfish populations in Limestone County (Beaverdam Spring/
Creek, Pryor Springs) are within the Wheeler Lake Basin (southern 
boundary of Limestone County), where Tsegaye et al. (2006, pp. 175-176) 
found that rapid urbanization with associated decrease in agricultural 
land cover is likely responsible for water quality degradation in 
streams from non-point source phosphorus pollution. Phosphorus content 
of groundwater is generally low (Wetzel 1983, p. 281). However, 
urbanization increases the amount of phosphorus from residential 
fertilizers and storm sewer drainage (Wetzel 1983, p. 281) that may 
enter groundwater recharge areas. Phosphorus limits biological 
productivity (Wetzel 1983, p. 255) by impacting organismal metabolism. 
Nitrogen also impacts aquatic life. For instance, un-ionized ammonia 
(which contains nitrogen) is highly toxic to fish (Hoffman et al. 2003, 
p. 681). The planned development adjacent to spring pygmy sunfish 
habitat is likely to increase phosphorus and nitrogen levels in the 
future.
    Aquatic plants, which the spring pygmy sunfish uses for spawning, 
shelter, and foraging, are also impacted by indiscriminate use of 
chemicals (Jandebeur 2012, p. 2; Sandel 2011, pp. 1-5, 8-9). Since 
1945, herbicide usage, cattle grazing, and irrigation have occurred 
throughout the spring systems and waterways that are habitat for this 
species (Jandebeur 1979, pp. 4-8). Aquatic vegetation management within 
Thorsen Spring, Horton Spring, and the Pryor Spring/Branch system has 
removed the spring pygmy sunfish's shelter vegetation, egg substrate, 
and food sites (Jandebeur 1979, pp. 4-8; Mayden 1993, p. 9; Jandebeur 
2012, p. 2). Agricultural chemical contamination results in sublethal 
toxic effects in fish species, affecting the immune system, hormone 
regulation, reproduction, and developmental stages (Hoffman et al. 
2003, pp. 1056--1063, 1242). The spring pygmy sunfish's negative 
response to herbicides (Hoffman et al. 2003, p. 1242) is documented by 
the subsequent reduction and eventual loss of the population in Pryor 
Branch after the application of 2, 4-dichlorophenoxyacetic acid (2,4-D) 
to that area in the 1940s (Jandebeur 2012, pp. 1-18). This herbicide is 
toxic to fish and aquatic invertebrates, and has properties and 
characteristics associated with chemicals generally detected in 
groundwater contamination. Decaying vegetation caused by the 
application of this herbicide also impacts fishes by reducing dissolved 
oxygen levels (Environmental Protection Agency (EPA) Material Safety 
Data Sheet, pp. 1-13).
    Many of the same chemicals used in large-scale agricultural 
practices are also used by municipal entities including urban and rural 
households. Stormwater runoff from city streets, construction sites, 
and storm sewers; household wastes; and leachate from septic tanks and 
landfills alter the sediment load in aquatic systems and deposit 
contaminants into surface and groundwater sources (Likens 2009, p. 90). 
Water quality degradation from chemicals will increase with the 
expected increase in urbanization and industrialization of the area.
    Overgrazing by livestock is a major threat to springs, especially 
where animals have free range through spring systems and wetlands. Cows 
tend to congregate in wetland areas, where they consume and trample 
vegetation, thereby reducing shade around the spring and increasing the 
water temperature. Livestock also trample banks in springs and spring 
runs, leading to increased stormwater and sediment runoff, which 
eliminates habitat for invertebrate prey species (Erman 2002, p. 8; 
Sada et al. 2001, pp. 14-16). Excessive sediment runoff during 
stormwater events decreases water clarity, which reduces light 
penetration needed for plant growth and results in impacts to the 
spring pygmy sunfish's spawning and feeding sites.
    Timber harvesting and land clearing can also have impacts on spring 
water quality and associated spring species. Recent tree removal along 
the boundary of the Wheeler National Wildlife Refuge, which is spring 
pygmy sunfish habitat and part of the Beaverdam Spring/Creek system, 
highlights the need for careful management of spring habitats (Hurt, 
pers. comm., 2012). The removal of the trees greatly reduced the buffer 
along the Beaverdam Spring/Creek system and will likely increase 
sedimentation into the stream during stormwater runoff. An appropriate 
mixture of shade and sunlight is needed for the proper growth and 
maintenance of vegetation in the spring environment. This vegetation is 
important to maintaining a stable water temperature and habitat for an 
invertebrate prey base. Reducing shade by mechanical logging and 
clearing can increase atypical spring flow, lead to greater spring run 
flow variability, and increase sedimentation (Erman 2002, p. 9) by 
altering the existing geomorphology and enhancing stormwater runoff.
Conservation Efforts To Reduce Habitat Destruction, Modification, or 
Curtailment
    When considering whether or not to list a species under the Act, we 
must identify existing conservation efforts and their effect on the 
species. Under the Act and our policy implementing this provision, 
known as the Policy for Evaluation of Conservation Efforts When Making 
Listing Decisions (PECE) (68 FR 15100; March 28, 2003), we must 
evaluate the certainty of an effort's effectiveness on the basis of 
whether the effort or plan: Establishes specific conservation 
objectives; identifies the necessary steps to reduce threats or factors 
for decline; includes quantifiable performance measures for the 
monitoring of compliance and effectiveness; incorporates the principles 
of adaptive management; is likely to be implemented; and is likely

[[Page 60186]]

to improve the species' viability at the time of the listing 
determination. In general, in order to meet these standards for the 
spring pygmy sunfish, conservation efforts must, at minimum, report 
data on existing populations, describe activities taken toward 
conservation of the species, demonstrate either through data collection 
or best available science how these measures will alleviate threats, 
provide for a mechanism to integrate new information (adaptive 
management), and provide information regarding certainty of the 
implementation (e.g., funding and staffing mechanisms).
    The Service entered into a CCAA for the benefit of the spring pygmy 
sunfish with Belle Mina Farms, Ltd., and the Land Trust of Huntsville 
and North Alabama (Land Trust) on June 7, 2012. The area covered under 
the CCAA is approximately 3,200 acres and encompasses the upper 24 
percent of habitat occupied by the Beaverdam Spring/Creek 
metapopulation, which is currently the only known population for the 
species. Under the CCAA, the landowner agrees to implement conservation 
measures to address known threats to the species. These measures will 
help protect the species on his property in the near term and also 
minimize any incidental take of the species that might occur as a 
result of conducting other covered activities, if the species becomes 
federally listed in the future. Conservation measures to be implemented 
by the landowner on this property will assist in the reduction of 
chemical usage and stormwater runoff from agricultural fields by 
establishing and maintaining vegetated buffer zones around Moss and 
Beaverdam Spring. The landowner also agrees to restrict timber harvest 
and cattle grazing within the Beaverdam Spring/Creek and Moss Spring 
habitats, and to refrain from any deforestation, industrial/residential 
development, aquaculture, temporary or permanent ground water removal 
installations, and other potentially damaging actions without prior 
consultation with the Service and the Service's written agreement. 
These actions will minimize impacts and help to maintain groundwater 
recharge of the aquifer and adequate spring flow. The Land Trust will 
conduct monitoring on the progress of the conservation actions and 
annual habitat analyses.
    The CCAA and associated enhancement of survival permit have a 
duration of 20 years; however, under a special provision of this CCAA, 
if at any time a 15 percent decline in the status of the spring pygmy 
sunfish is determined, there will be a reevaluation of the conservation 
measures set forth in the CCAA. If such a reevaluation reflects a need 
to change the conservation measures, the amended measure(s) will be 
implemented or the CCAA will be terminated and the permit surrendered.
    Conservation efforts set forth in this CCAA are a positive step 
toward the conservation of the spring pygmy sunfish. These conservation 
actions will reduce the severity of some of the threats to the species 
outlined under Factor A within the upper portion of the Beaverdam 
Spring/Creek and Moss Spring sites. However, these conservation 
measures and the CCAA are restricted to only the upper 24 percent of 
occupied habitat in the Beaverdam Spring/Creek complex. There is no 
protection for the 24 percent of the species' habitat within the middle 
reach of the Beaverdam Spring/Creek System. The remaining 52 percent of 
the species' habitat, although it is federally owned and protected, is 
considered marginal habitat in the lower reach of the Beaverdam Spring/
Creek System. In the middle and non-protected area below the CCAA 
protected site, land use practices continue to contribute to water 
quantity and water quality degradation. In addition, the large-scale 
development planned adjacent to this species' habitat, and outside the 
boundaries of the land enrolled in the CCAA, continues to pose a threat 
to the spring pygmy sunfish and its habitat. Furthermore, since this 
CCAA has been just recently enacted, there has yet to be long-term 
monitoring, which is needed to evaluate the overall effectiveness of 
these efforts.
Summary of Factor A
    As discussed above, the spring pygmy sunfish and its habitat are 
currently facing the threats of both declining water quality and 
quantity. Excessive groundwater usage, and the resultant reduction of 
the water levels in the aquifer/recharge areas and decreased spring 
outflow in the Beaverdam Spring/Creek system, is believed to have 
negatively impacted the spring pygmy sunfish and its habitat. 
Contamination of the recharge area and aquifer from the intensive use 
of chemicals (i.e., herbicides, pesticides, fertilizers) within the 
spring pygmy sunfish's habitat poses a threat to the species' survival. 
Stormwater discharge from agricultural lands and urban sites compounds 
the water quality degradation by increasing sediment load and 
depositing contaminants into surface and groundwater sources. In 
addition, the large-scale residential and industrial development 
planned adjacent to the Beaverdam Spring/Creek system will exacerbate 
the decreasing water quantity and quality issues within the habitat of 
the spring pygmy sunfish's single metapopulation. Overgrazing by 
livestock and land clearing near and within the spring systems reduces 
the vegetation in the spring and increases stormwater and sediment 
runoff, posing a threat to the single spring pygmy sunfish population, 
particularly in the middle and lower portions of its range.
    Based on our review of the best commercial and scientific data 
available, we conclude that the present or threatened destruction, 
modification, and curtailment of its habitat or range is currently a 
threat to the spring pygmy sunfish and is expected to persist and 
possibly escalate in the future, particularly in light of the 
increasing demands for groundwater and large-scale development that is 
planned near this species' habitat. While the CCAA has reduced some of 
the threats under this factor, it only covers a portion of the extant 
range of the species, and will not ameliorate all threats of ongoing 
and potential water quantity and water quality degradation.

Factor B: Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The spring pygmy sunfish is not a commercially valuable species. 
However, this species has been actively sought by researchers since its 
discovery in 1937. Overcollecting may have been a localized factor in 
the historical decline of this species, particularly within the 
introduced population in Pryor Spring/Branch (Jandebeur 2012, p. 14); 
however, the overall impact of collection on the spring pygmy sunfish 
population is unknown (Jandebeur 2012, p. 14). The localized 
distribution and small size of known populations renders them 
vulnerable to overzealous recreational or scientific collecting. 
However, at this time we have no specific information indicating that 
overcollection rises to the level to pose a threat to the species now 
or in the future. Therefore, we find that overutilization for 
commercial, recreational, scientific, or educational purposes does not 
constitute a threat to the spring pygmy sunfish at this time.

Factor C: Disease or Predation

    Diseases of the spring pygmy sunfish are poorly known, and we have 
no specific information indicating that disease occurs within spring 
pygmy sunfish populations or poses a threat to the species. Eggs, 
juveniles, and adult spring pygmy sunfish are preyed upon by some 
invertebrate species, parasites, and vertebrate species such as frogs, 
snakes, turtles, other fish, and piscivorous (fish-eating) birds. It is

[[Page 60187]]

possible that predation increases when fish are concentrated in smaller 
areas when groundwater is depleted through water extraction. However, 
we have no evidence of any specific declines in the spring pygmy 
sunfish due to predation.
    In summary, we conclude that the best scientific and commercial 
information available indicates, at the present time, that diseases or 
predation are not threats to the spring pygmy sunfish.

Factor D: The Inadequacy of Existing Regulatory Mechanisms

    The spring pygmy sunfish and its habitat are afforded some 
protection from surface water quality and habitat degradation under the 
Clean Water Act (33 U.S.C. 1251 et seq.), and the Alabama Water 
Pollution Control Act (Code of Alabama, sections 22-22-1 et seq.) and 
regulations promulgated by the Alabama Department of Environmental 
Management (Maynard and Gale 1995, pp. 20-28). While these laws have 
resulted in some improvement in water quality and stream habitat for 
aquatic life, such as requiring landowners engaged in agricultural 
practices to have an erosion prevention component within their farm 
plan, alone they have not been fully adequate to protect this species 
due to inconsistent implementation, monitoring, and enforcement. 
Furthermore, habitat degradation is ongoing despite the protection 
afforded by these laws.
    The State of Alabama maintains water-use classifications through 
issuance of National Pollutant Discharge Elimination System (NPDES) 
permits to industries, municipalities, and others; these permits set 
maximum limits on certain pollutants or pollutant parameters. For water 
bodies on the Clean Water Act's section 303(d) List of Impaired Water 
Bodies, States are required under the Clean Water Act to establish a 
total maximum daily load (TMDL) for the pollutants of concern that will 
bring water quality into the applicable standard. Many of the water 
bodies within the occupied range of the spring pygmy sunfish do not 
meet Clean Water Act standards (Alabama 2008 section 303(d) List of 
Impaired Water Bodies).
    The State of Alabama's surface water quality standards, adopted 
from the national standards set by the EPA, were established with the 
intent to protect all aquatic resources within the State of Alabama. 
These water quality regulations appear to be protective of the spring 
pygmy sunfish as long as discharges are within permitted limits and are 
enforced according to the provisions of the Clean Water Act. 
Unregulated and indiscriminate groundwater and surface water extraction 
has been identified as a threat to spring species (see Factor A 
discussion above). Within the State of Alabama, regulations concerning 
groundwater issues are limited (Alabama Law Review 1997, p. 1). Alabama 
common law follows a ``reasonable use rule'' for the extraction of 
groundwater, and there is a statutory framework that regulates and 
governs groundwater extraction (Chapman et al. 2005, p. 9; Alabama 
Water Resources Act, Code of Alabama, sections 9-10B-1 et seq.). Water 
users must file a declaration of beneficial use, be issued a 
certificate of use, and be permitted and monitored periodically. The 
Alabama Water Commission can place restrictions on certificates of use 
in certain designated water capacity stressed areas; however, the 
Alabama Water Commission has not identified any stressed groundwater 
areas in or near spring pygmy sunfish habitat. Large volumes of 
groundwater continue to be extracted in areas not identified as 
``stressed groundwater areas'' such as the Beaverdam Spring/Creek 
watershed, and this likely depresses water levels in nearby wells 
(Hairston et al. 1990, p. 7) and springs (Younger 2007, p. 162). Such 
groundwater extraction has likely depleted the aquifer that supplies 
water to Beaverdam Spring and the spring pygmy sunfish. Thus, water use 
restrictions under common law (Chapman et al. 2005, p. 10) provide 
marginal protection for the species.
Summary of Factor D
    The spring pygmy sunfish and its habitat are afforded limited 
protection from surface water quality and habitat degradation under 
Federal and State regulations. Notwithstanding this limited protection, 
large volumes of groundwater are continually extracted, and these 
extractions likely threaten the aquifer that supplies water to spring 
pygmy sunfish habitat. Degradation of habitat within the current range 
of this species is ongoing despite the protections afforded by these 
existing laws. Therefore, based on the best scientific and commercial 
information available, we consider the inadequacy of existing 
regulatory mechanisms to be a threat to spring pygmy sunfish.

Factor E: Other Natural or Manmade Factors Affecting Its Continued 
Existence

    Impediments to migration, connectivity, and gene flow between or 
within spring systems are threats to maintaining genetic diversity in 
the spring pygmy sunfish. Habitat connectivity is critical to 
maintaining heterozygosity (genetic diversity) within populations of 
the species and reducing inbreeding, thereby maintaining the integrity 
of the population (Hallerman 2003, pp. 363-364). Connectivity of spring 
pygmy sunfish habitats is also necessary for improvement in water 
quality through flushing and diluting pollutants and increasing water 
quantity, and by linking spring segments together. Connectivity 
maintains water flow between Beaverdam Spring/Creek habitats and allows 
for potential colonization of unoccupied areas when conditions become 
favorable for the species. Mechanical fragmentation of the habitat has 
formed smaller, isolated subpopulations of spring pygmy sunfish. 
Localized environmental changes caused by agriculture, urbanization, 
and other anthropogenic disturbances of the spring systems throughout 
the watersheds of the Eastern Highland Rim have exacerbated 
fragmentation of spring habitat (Sandel 2011, pp. 3-6; 2008, pp. 2-4, 
13). Over time, this fragmentation of the spring pygmy sunfish's 
habitat will impose negative selective pressures on the species' 
populations, such as genetic isolation; reduction of space for rearing, 
recruitment, and reproduction; reduction of adaptive capabilities; and 
increased likelihood of local extinctions (Sandel 2011, pp. 8-10; 
Burkhead et al. 1997, pp. 397-399).
Climate Change
    ``Climate'' refers to an area's long-term average weather 
statistics (typically for at least 20- or 30-year periods), including 
the mean and variation of surface variables such as temperature, 
precipitation, and wind; ``climate change'' refers to a change in the 
mean or variability or both of climate properties that persists for an 
extended period (typically decades or longer), whether due to natural 
processes or human activity (Intergovernmental Panel on Climate Change 
(IPCC) 2007a, p. 26). Although changes in climate occur continuously 
over geological time, changes are now occurring at an accelerated rate. 
For example, at continental, regional, and ocean basin scales, recent 
observed changes in long-term trends include: A substantial increase in 
precipitation in eastern parts of North American and South America, 
northern Europe, and northern and central Asia, and an increase in 
intense tropical cyclone activity in the North Atlantic since about 
1970 (IPCC 2007a, p. 30); and an increase in annual average temperature 
of more than 2[emsp14][deg]F

[[Page 60188]]

(1.1 [deg]C) across United States since 1960 (Global Climate Change 
Impacts in the United States (GCCIUS) 2009, p. 27). Examples of 
observed changes in the physical environment include: An increase in 
global average sea level, and declines in mountain glaciers and average 
snow cover in both the northern and southern hemispheres (IPCC 2007a, 
p. 30); substantial and accelerating reductions in Arctic sea-ice 
(e.g., Comiso et al. 2008, p. 1); and a variety of changes in ecosystem 
processes, the distribution of species, and the timing of seasonal 
events (e.g., GCCIUS 2009, pp. 79-88).
    The IPCC used Atmosphere-Ocean General Circulation Models and 
various greenhouse gas emissions scenarios to make projections of 
climate change globally and for broad regions through the 21st century 
(Randall et al. 2007, pp. 596-599), and reported these projections 
using a framework for characterizing certainty (Solomon et al. 2007, 
pp. 22-23). For example: (1) It is virtually certain there will be 
warmer and more frequent hot days and nights over most of the earth's 
land areas; (2) it is very likely there will be increased frequency of 
warm spells and heat waves over most land areas, and the frequency of 
heavy precipitation events will increase over most areas; and (3) it is 
likely that increases will occur in the incidence of extreme high sea 
level (excludes tsunamis), intense tropical cyclone activity, and the 
area affected by droughts (IPCC 2007b, p. 8, Table SPM.2). More recent 
analyses using a different global model and comparing other emissions 
scenarios resulted in similar projections of global temperature change 
across the different approaches (Prinn et al. 2011, pp. 527, 529).
    All models (not just those involving climate change) have some 
uncertainty associated with projections due to assumptions used, data 
available, and features of the models; with regard to climate change 
this includes factors such as assumptions related to emissions 
scenarios, internal climate variability, and differences among models. 
Despite this, however, under all global models and emissions scenarios, 
the overall projected trajectory of surface air temperature is one of 
increased warming compared to current conditions (Meehl et al. 2007, p. 
762; Prinn et al. 2011, p. 527). Climate models, emissions scenarios, 
and associated assumptions, data, and analytical techniques will 
continue to be refined, as will interpretations of projections, as more 
information becomes available. For instance, some changes in conditions 
are occurring more rapidly than initially projected, such as melting of 
Arctic sea-ice (Comiso et al. 2008, p. 1; Polyak et al. 2010, p. 1797), 
and since 2000, the observed emissions of greenhouse gases, which are a 
key influence on climate change, have been occurring at the mid- to 
higher levels of the various emissions scenarios developed in the late 
1990s and used by the IPCC for making projections (e.g., Raupach et al. 
2007, Figure 1, p. 10289; Manning et al. 2010, Figure 1, p. 377; Pielke 
et al. 2008, entire). Also, the best scientific and commercial data 
available indicate that average global surface air temperature is 
increasing and several climate-related changes are occurring and will 
continue for many decades even if emissions are stabilized soon (e.g., 
Meehl et al. 2007, pp. 822-829; Church et al. 2010, pp. 411-412; 
Gillett et al. 2011, entire).
    Changes in climate can have a variety of direct and indirect 
impacts on species, and can exacerbate the effects of other threats. 
Rather than assessing ``climate change'' as a single threat in and of 
itself, we examine the potential consequences to species and their 
habitats that arise from changes in environmental conditions associated 
with various aspects of climate change. For example, climate-related 
changes to habitats, predator-prey relationships, disease and disease 
vectors, or conditions that exceed the physiological tolerances of a 
species, occurring individually or in combination, may affect the 
status of a species. Vulnerability to climate change impacts is a 
function of sensitivity to those changes, exposure to those changes, 
and adaptive capacity (IPCC 2007, p. 89; Glick et al. 2011, pp. 19-22). 
As described above, in evaluating the status of a species, the Service 
uses the best scientific and commercial data available, and this 
includes consideration of direct and indirect effects of climate 
change. As is the case with all potential threats, if a species is 
currently affected or is expected to be affected by one or more 
climate-related impacts, this does not necessarily mean the species is 
an endangered or threatened species as defined under the Act. If a 
species is listed as endangered or threatened, this knowledge regarding 
its vulnerability to, and impacts from, climate-associated changes in 
environmental conditions can be used to help devise appropriate 
strategies for its recovery.
    While we do not have specific information concerning the effect of 
climate change on spring pygmy sunfish and its habitat, we do know that 
climate affects groundwater budgets (inflow and outflow) by influencing 
precipitation and evaporation and, therefore, the rates and 
distribution of recharge of the aquifer. Climate also affects human 
demands for groundwater and affects plant transpiration from shallow 
groundwater in response to solar energy and changing depths to the 
water table (Likens 2009, p. 91). Chronic regional drought between 2000 
and 2005 within the Tennessee Valley decreased rates of surface water 
flow and aquifer recharge. Water extraction (of both groundwater and 
surface water) during drought periods exacerbated damage to the spring 
pygmy sunfish and its habitat (Sandel 2009, p. 15).
    Long-term droughts have impacts on groundwater by increasing 
groundwater extraction for public consumption and agriculture, which in 
turn does not replenish surface waters (Likens 2009, p. 91). The 
prolonged drought within northern Alabama during 2006 to 2008 was 
exceptional (Jandebeur 2012, p. 13) and, along with the severe drought 
of 1950 to 1963 (Jandebeur 2012, p. 13), may have contributed to the 
demise of the Pryor Spring/Branch population of the spring pygmy 
sunfish by increasing toxic concentrations of herbicides and by 
increasing the desiccation of aquatic vegetation.
Conservation Efforts To Reduce or Eliminate Other Natural or Manmade 
Factors
    The CCAA will likely reduce some of the threats to groundwater 
caused by climate change within the upper portion of the species' range 
by minimizing impacts and helping to maintain groundwater recharge of 
the aquifer, protecting surface water flow, and limiting groundwater 
extraction. Under the CCAA, the Service will provide technical 
assistance and groundwater management advice. Additionally, adaptive 
management measures of the CCAA concern groundwater usage, including 
pumping from the aquifer and avoidance of temporary or permanent ground 
water removal installations. Also under the CCAA, the landowner will 
not engage in practices that may disturb water quality during low water 
levels in drought periods, such as pesticide and herbicide use, stock 
farm ponds, and aquaculture, within the designated protected area. 
These conservation measures will help protect the species on this 
property in the near term and also minimize any incidental take of the 
species that might occur as a result of conducting other covered 
activities, should the species become listed in our final 
determination. However, because of anthropogenic factors such as 
urbanization or intensive agriculture, these conservation measures may 
be inadequate during drought

[[Page 60189]]

periods caused by climate change or other natural phenomena.
Summary of Factor E
    In summary, habitat fragmentation and its resulting effects on gene 
flow and potential demographic impacts within the population is a 
substantial threat and is affecting the spring pygmy sunfish's 
continued existence. Climate change, in particular drought, affects 
groundwater budgets (inflow and outflow) by influencing the rates and 
distribution of recharge of the aquifer, affects human demands for 
groundwater, and affects plant transpiration from shallow groundwater 
reserves. Based on the best available information, we conclude that the 
spring pygmy sunfish faces threats from other natural or manmade 
factors affecting its continued existence. These threats continue 
despite the beneficial effects of the CCAA.

Finding

    As required by the Act, we conducted a review of the status of the 
species and considered the five factors in assessing whether the spring 
pygmy sunfish is endangered or threatened throughout all or a 
significant portion of its range. We examined the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by the spring pygmy sunfish. We reviewed the 
petition, information available in our files, and other available 
published and unpublished information, and we consulted with recognized 
spring pygmy sunfish experts and other Federal and State agencies.
    The identified threats to the spring pygmy sunfish are attributable 
to Factors A, D, and E, as described in more detail in the Summary of 
Information Pertaining to the Five Factors section above. The primary 
threat to the species is from habitat modification (Factor A) in the 
form of planned urban and industrial development of land adjacent to 
spring pygmy sunfish habitat and the resultant impacts to the 
surrounding aquifer recharge area, coupled with ongoing threats 
associated with ground and surface water withdrawal and water quality 
within the spring systems where this species currently occurs and 
historically occurred. We find that this threat of increased urban and 
industrial development and the associated infrastructure, along with 
the current human use of the area, is a threat to the spring pygmy 
sunfish, causing direct mortality as well as permanent loss, 
fragmentation, or alteration of its habitat.
    The degradation of habitat throughout the species' range is ongoing 
despite the protections afforded by existing Federal and State laws and 
policies (Factor D). Habitat fragmentation and its resulting effects on 
gene flow and potential demographic impacts within the population is a 
threat (Factor E) and is affecting the spring pygmy sunfish's continued 
existence. The recently established CCAA provides a measure of 
protection for the species in the upper reach of the population, with 
the implementation of conservation measures that increase or preserve 
water quantity and reduce water quality degradation and prohibit any 
potentially damaging land use actions in that area (Factor A). However, 
these conservation measures only extend to that portion of the 
population enrolled in the CCAA, which protects 24 percent of the total 
occupied habitat. Although this CCAA reduces some of the threats under 
Factors A and E, the CCAA is not able to ameliorate all of the threat 
factors to this species rangewide.
    Based on our evaluation of the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the spring pygmy sunfish, we have determined the continued 
existence of the spring pygmy sunfish is under threat from: Ongoing and 
planned urban and industrial development and associated activities; 
ongoing agricultural practices, including water extraction from 
groundwater and surface water; the reduction of aquifer recharge, 
resulting in changes in hydrology; surface and groundwater pollution; 
past and present use of fertilizers and pesticides; climate change; 
inadequate regulatory mechanisms; and habitat fragmentation and 
resultant interruption in gene flow. These threats exist despite the 
beneficial effects of the CCAA. Because the species faces these threats 
throughout its extremely limited range, we find that the spring pygmy 
sunfish is warranted for listing throughout its range.

Status Evaluation

    The Act defines an endangered species as any species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a threatened species as one that is likely to become 
endangered in the foreseeable future throughout all or a significant 
portion of its range. In this proposal of the status of the spring 
pygmy sunfish, we take into account the protection afforded to the 
springhead and upper portion of the population through the established 
CCAA (helping to moderate threats under Factors A and E), and look 
carefully at future potential threats, especially the potential impact 
of residential and commercial development, which is currently only in 
the planning stage. Based on our evaluation of the best available 
scientific and commercial information related to the extremely 
restricted range of the species, threats to it and its habitat, future 
potential threats, and conservation measures currently underway through 
an established CCAA, we have determined that the species is threatened 
by multiple factors (Factors A, D, and E) throughout all of its range. 
Specifically, we have determined that the species is likely to become 
endangered in the foreseeable future, and therefore meets the 
definition of a threatened species. Threatened status was determined to 
be proposed for the spring pygmy sunfish because it is not considered 
to be in immediate danger of extinction primarily due to the ongoing 
conservation measures in the CCAA, which offers protection to the 
Beaverdam springhead and the most robust portion of the population. In 
addition, impacts to the species from large-scale industrial and 
residential development adjacent to the spring are not imminent, as 
developments are still in the planning stage. The species is not 
endangered, because it is not currently in immediate danger of 
extinction, but as noted, we find that it is likely to become in danger 
of extinction throughout its range in the foreseeable future, which is 
the definition of a threatened species. Because the range of the 
species consists of a single occurrence location, and we have 
determined that the species is at risk of becoming endangered in that 
location, we do not need to further analyze whether there may be a 
significant portion of the range of the species that has a different 
status.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition of a species through listing results in 
increased public awareness and more focused conservation efforts by 
Federal, State, Tribal, and local agencies; private organizations; and 
individuals. The Act encourages cooperation with the States and 
requires that recovery actions be carried out for all listed species. 
The protection measures required of Federal agencies and the 
prohibitions against certain activities involving listed wildlife are 
discussed, in part, below, and

[[Page 60190]]

additionally in the Effects of Critical Habitat Designation section of 
this proposed rule below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed, preparation of a draft and final 
recovery plan, and revisions to the plan as significant new information 
becomes available. The recovery outline guides the immediate 
implementation of urgent recovery actions and describes the process to 
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species, 
measurable criteria that determine when a species may be downlisted or 
delisted, and methods for monitoring recovery progress. Recovery plans 
also establish a framework for agencies to coordinate their recovery 
efforts and provide estimates of the cost of implementing recovery 
tasks. Recovery teams (comprised of species experts, Federal and State 
agencies, nongovernment organizations, and stakeholders) are often 
established to develop recovery plans. When completed, the recovery 
outline, draft recovery plan, and the final recovery plan will be 
available on our Web site (http://www.fws.gov/endangered), or from our 
Mississippi Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribal, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may also occur on non-Federal lands. 
To achieve recovery of these species requires cooperative conservation 
efforts on private, State, and Tribal lands. The CCAA between the 
Service, Belle Mina Farms Ltd., and the Land Trust identifies several 
strategies that will support recovery efforts, including: (1) 
Maintenance of vegetation buffer zones along the springs; (2) 
prohibition of cattle within the spring; (3) prohibition of 
deforestation, land clearing, industrial development, residential 
development, aquaculture, temporary or permanent ground water removal 
installations, stocked farm ponds, pesticide and herbicide use, and 
impervious surface installation within the protected area of the CCAA; 
and (4) establishment of a biological monitoring program for the spring 
pygmy sunfish and its habitat.
    If this species is listed, funding for recovery actions will become 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
under section 6 of the Act, the State of Alabama would be eligible for 
Federal funds to implement management actions that promote the 
protection and recovery of the spring pygmy sunfish. Information on our 
grant programs that are available to aid species recovery can be found 
at: http://www.fws.gov/grants.
    Although the spring pygmy sunfish is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with the 
Service on any action that is likely to jeopardize the continued 
existence of a species proposed for listing or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) of the Act requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of the species or 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include Federal activities that may affect spring pygmy 
sunfish, including, but not limited to: The carrying out or the 
issuance of permits for discharging fill material on wetlands for road 
or highway construction; installation of utility easements; development 
of residential, industrial, and commercial facilities; unsustainable 
farming practices, including indiscriminate use of chemicals, and 
decreasing buffers around fields and drainage ditches and swales; 
channeling or other stream geomorphic changes; discharge of 
contaminated or sediment laden waters; wastewater facility development; 
and excessive groundwater and surface water extraction. Additional 
actions that may require conference or consultation or both include:
    (1) Actions that would significantly alter the structure and 
function of the spring system. Such actions or activities could 
include, but are not limited to, the filling or excavation of spring 
heads, spring pools, spring-fed wetlands, and spring runs. The filling 
or excavation of the spring system would alter the hydrology of the 
site and would destroy the vegetation, water quality, and water 
quantity where spring pygmy sunfish spends all of its life stages. The 
filling or excavation of the spring systems could result in the direct 
mortality of the species where the species is known to occur.
    (2) Actions that would significantly alter the aquatic vegetation 
structure in and around the spring associated wetland. Such actions or 
activities could include, but are not limited to, vegetation cutting or 
herbicide usage for expanding or maintaining roads, construction of new 
roads, maintenance of agricultural fields, construction of new 
agricultural fields, development of new residences, development of new 
commercial establishments, or industrial development. Alteration of the 
vegetation structure would likely change the spring-fed wetland 
characteristics by changing the microhabitat (e.g., change in 
temperature and humidity levels) and could result in direct mortality 
of individuals and egg clutches through desiccation from sun exposure.

[[Page 60191]]

    (3) Actions that may alter the natural outflow and quantity of 
water from the spring head and through the spring run into the stream 
channels. Such actions or activities could include, but are not limited 
to, changes in the hydrology of Beaverdam Spring/Creek and related 
recharge area and aquifer. These actions include, but are not limited 
to, excessive water extraction for public, municipal, industrial, and 
agricultural usages.
    (4) Actions that would significantly degrade water quality 
parameters such as pH, alkalinity, conductivity, turbidity, and others 
(i.e., contaminants, excess nutrients). Stormwater discharge laden with 
chemicals and sediments can enter groundwater and surface water 
systems. Decreasing water quantity concentrates chemicals and also 
encourages eutrophic (nutrient rich) conditions.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions of section 9(a)(1) of the Act, and its 
implementing regulations at 50 CFR 17.21, make it illegal for any 
person subject to the jurisdiction of the United States to take (which 
includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or to attempt any of these), import, export, ship in 
interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. 
The regulations at 50 CFR 17.31 extend the prohibitions listed above to 
threatened species, with certain exceptions. Under the Lacey Act (18 
U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. Certain exceptions apply to agents of the Service 
and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened wildlife species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.22 for endangered species, and at 17.32 for threatened species. With 
regard to endangered wildlife, a permit must be issued for take for the 
following purposes: for scientific purposes, to enhance the propagation 
or survival of the species, and for incidental take in connection with 
otherwise lawful activities.
    It is our policy, as 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. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. The following activities could 
potentially result in a violation of section 9 of the Act; this list is 
not comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens of these taxa at least 100 years 
old, as defined by section 10(h)(1) of the Act;
    (2) Introduction of species that compete with or prey upon the 
spring pygmy sunfish;
    (3) The unauthorized release of biological control agents that 
attack this species' habitat or any of its life stages;
    (4) Unauthorized modification of the vegetation composition or 
hydrology, or violation of any discharge or water withdrawal permit 
that results in harm or death to any individuals of this species or 
that results in degradation of its occupied habitat to an extent that 
essential behaviors such as breeding, feeding, and sheltering are 
impaired;
    (5) Unauthorized destruction or alteration of their habitats (such 
as channelization, dredging, sloping, removing of substrate, or 
discharge of fill material) that impairs essential behaviors, such as 
breeding, feeding, or sheltering, or that results in killing or 
injuring spring pygmy sunfish; and
    (6) Unauthorized discharges or dumping of toxic chemicals or other 
pollutants into the aquifer directly through wells or into the spring 
system or indirectly into recharge areas supporting spring pygmy 
sunfish that kills or injures the species or that otherwise impairs 
essential life-sustaining requirements, such as breeding, feeding, or 
sheltering (destruction of vegetation and substrate).
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Mississippi 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). 
Requests for copies of the regulations concerning listed animals and 
general inquiries regarding prohibitions and permits may be addressed 
to the U.S. Fish and Wildlife Service, Endangered Species Permits, 1875 
Century Blvd. NE., Atlanta, GA 30345 (telephone 404-679-7313; facsimile 
404-679-7081).

Critical Habitat

Background

    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the spring pygmy 
sunfish in this section of the proposed rule.
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner seeks or requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) of the Act would apply, but even in the event

[[Page 60192]]

of a destruction or adverse modification finding, the obligation of the 
Federal action agency and the landowner is not to restore or recover 
the species, but to implement reasonable and prudent alternatives to 
avoid destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographic area occupied by the species at the time it 
is listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. In identifying those physical 
and biological features within an area, we focus on the principal 
biological or physical constituent elements (primary constituent 
elements (PCEs) such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are the 
elements of physical or biological features that, when laid out in the 
appropriate quantity and spatial arrangement to provide for a species' 
life-history processes, are essential to the conservation of the 
species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographic area 
occupied by the species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. We 
designate critical habitat in areas outside the geographic area 
occupied by a species only when a designation limited to occupied 
habitat would be inadequate to ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. If we list the spring pygmy sunfish and 
designate critical habitat for the species, areas that are important to 
the conservation of the species, both inside and outside the critical 
habitat designation, would continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) the prohibitions of section 9 of the Act if actions 
occurring in these areas may affect the species. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools would continue to 
contribute to recovery of this species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation would not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that the Secretary designate 
critical habitat at the time the species is determined to be endangered 
or threatened to the maximum extent prudent and determinable. These 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations 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.
    As we have discussed above under the Factor B analysis, there is 
currently no imminent threat of take attributed to collection (for 
commercial, recreational, scientific, or educational purposes) of this 
species. Moreover, there is no information to indicate that 
identification of critical habitat is expected to create such a threat 
to the species. In the absence of a finding that the designation of 
critical habitat would increase threats to a species, then a prudent 
finding is warranted if there are any benefits to a critical habitat 
designation. Potential benefits of designation include: (1) Triggering 
consultation under section 7 of the Act, in new areas for actions in 
which there may be a Federal nexus where it would not otherwise occur 
because, for example, it is or has become unoccupied or the occupancy 
is in question; (2) focusing conservation activities on the most 
essential features and areas; (3) providing educational benefits to 
State or county governments or private entities; and (4) preventing 
people from causing inadvertent harm to the species.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies refrain from taking any 
action that destroys or adversely modifies critical habitat. Lands 
proposed for designation as critical habitat would be subject to 
Federal actions that trigger section 7 consultation requirements. These 
include land management planning and Federal agency actions. There may 
also be educational or outreach benefits to the designation of critical 
habitat. Critical habitat designation identifies those physical and 
biological features of the habitat essential to the conservation of 
spring pygmy sunfish and that may require special management and 
protection. Accordingly, this designation would provide information to 
individuals, local and State governments, and other entities engaged in 
activities or long-range planning in areas essential to the 
conservation of the species. Conservation of the spring pygmy sunfish 
and the essential features of its habitat requires habitat management, 
protection, and restoration, which would be facilitated

[[Page 60193]]

by knowledge of habitat locations and the physical and biological 
features of the habitat. Based on this information, we believe critical 
habitat would be beneficial to this species. Therefore, we have 
determined that the designation of critical habitat for spring pygmy 
sunfish is prudent.

Determinability

    Our regulations (50 CFR 424.12(a)(2)) state that critical habitat 
is not determinable when one or both of the following situations exist: 
(1) Information sufficient to perform required analysis of the impacts 
of the designation is lacking, or (2) the biological needs of the 
species are not sufficiently well known to permit identification of an 
area as critical habitat.
    Delineation of critical habitat requires identification of the 
physical and biological habitat features that are essential to the 
conservation of the species. We have reviewed the available information 
pertaining to the known distribution of spring pygmy sunfish and the 
characteristics of the habitat currently occupied. This information 
represents the best scientific and commercial data available and leads 
us to conclude that, although available information is limited, it is 
sufficient to identify specific areas that meet the definition of 
critical habitat. Therefore, we have found that critical habitat is 
determinable for spring pygmy sunfish.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical and biological features required 
for the spring pygmy sunfish from studies of this species' habitat, 
ecology, and life history as described in the Background section of 
this proposed rule and information presented below. There is limited 
information on this species' specific habitat requirements, other than 
it requires springs and connecting spring-fed reaches and wetlands; an 
adequate groundwater and surface water hydrology; and clean, cool water 
and the associated vegetation and invertebrates. To identify the 
physical and biological needs of the species, we have relied on current 
conditions at the locations where the species exists today and the 
limited information we have on historical sites, limited information 
available on this species and its close relatives, and factors 
associated with the decline and extirpation of this and other spring-
associated fish species.
Space for Individual and Population Growth and for Normal Behavior
    Spring pygmy sunfish depend on geomorphically stable spring systems 
including the spring head, spring run, and spring pools. The spring 
systems used by the species also include transition zones between these 
features on moderately low-gradient topographic slopes that feather out 
into spring-fed wetland pools. The spring pygmy sunfish inhabits spring 
pools, spring runs, and spring-fed streams and pools with substrates of 
silt, sand, and gravel.
    The current range of the spring pygmy sunfish is reduced to 
localized sites due to fragmentation of the spring systems on which it 
depends. Fragmentation of the species' habitat has isolated populations 
and reduced available space for spawning, rearing of young, 
concealment, and foraging. As a result, the spring pygmy sunfish's 
adaptive capability has been reduced, and the likelihood of local 
extinctions has increased (Burkhead et al. 1997, pp. 397-399; Hallerman 
2003, pp. 363-364). Connectivity of spring systems maintains spawning, 
foraging, and resting sites, and allows for gene flow throughout the 
population. Genetic variation and diversity within a species are 
essential for recovery, adaptation to environmental changes, and long-
term viability (capability to live, reproduce, and develop) (Harris 
1984, pp. 93-107; Noss and Cooperrider 1994, pp. 282-297; Fluker et al. 
2007, p. 2). Long-term viability is founded on space for numerous 
interbreeding, local populations throughout the range (Harris 1984, pp. 
93-107).
    Therefore, based on the information above, we identify springs and 
connecting spring-fed reaches and wetlands of geomorphically stable, 
relatively low-gradient, headwater springs with spring heads, spring 
runs, and spring pools that filter into shallow vegetated wetlands to 
be an essential physical or biological feature for the spring pygmy 
sunfish. The connectivity of these habitats is essential in 
accommodating feeding, breeding, growth, and other normal behaviors of 
the spring pygmy sunfish and in promoting gene flow within the 
population.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
Water Quality
    Exceptional water quality at the spring heads and pools, and 
adequate water quality throughout the habitat, maintained by 
unobstructed water flow through connected spring habitats, are 
essential for normal behavior, growth, and viability during all life 
stages of the spring pygmy sunfish. Suitable habitat conditions for the 
spring pygmy sunfish have not been investigated thoroughly; however, 
some data specific to the species are available for the following water 
quality parameters: pH, water temperature, specific conductivity 
(ability of water to conduct an electric current, based on dissolved 
solids in the water), and alkalinity (capacity of solutes in an aqueous 
system to neutralize acid as HCO3). Spring pygmy sunfish males 
establish territories and spawn in late February through April, when 
water quality parameters are within a suitable pH range of 6.0 to 7.7, 
and water temperatures are between 57.2 and 68[emsp14][deg]F (14 and 20 
[deg]C) (Mettee 2008, p. 36; Sandal, 2007, p. 2; Rakes et al. 2011, p. 
4). A specific conductivity of 5.5 to 14.2 micro Siemens per centimeter 
at 61[emsp14][deg]F (16 [deg]C) and alkalinity of 20 to 66 milligrams 
per liter (mg/l) have been reported from habitat occupied by spring 
pygmy sunfish (Jandebeur 1997, p. 34).
    Essential water quality attributes for the spring pygmy sunfish may 
be inferred from those of other fish species living in medium water 
flow streams along with baseline spring and subsurface water quality 
information obtained from systems within Limestone County, adjacent 
counties, and elsewhere. Based on yearly averages, these include: (1) 
Dissolved oxygen levels greater than 6 parts per million (ppm); (2) 
temperatures between 45 and 80[emsp14][deg]F (7.2 and 26.7 [deg]C), 
with spring egg incubation temperatures from 54 to 65[emsp14][deg]F 
(12.2 to 18.3 [deg]C); (3) specific conductivity of less than 
approximately 300 micro Siemens per centimeter at 80[emsp14][deg]F 
(26.7 [deg]C); and (4) concentrations of free or suspended solids 
(organic and

[[Page 60194]]

inorganic sediments) less than 15 Nephelometric Turbidity Units (NTU; 
units used to measure sediment discharge) and 20 mg/L total suspended 
solids (TSS; measured as mg/L of sediment in water) (Teels et al. 1975, 
pp. 8-9; Ultschet et al. 1978, pp. 99-101; Ingersoll et al. 1984, pp. 
131-138; Chandler et al. 1987, pp. 56-57; Kundell and Rasmussen 1995, 
pp. 211-212; Henley et al. 2000, pp. 125-139; Meyer and Sutherland 
2005, pp. 43-64; McGregor et al. 2008, pp. 7-9; Knight 2011, pp. 3-8).
    Nonpoint and point sources of ammonia and chlorine from commercial 
water extraction facilities and agricultural fields may be primary 
factors in reducing the quality of spring run waters for spring pygmy 
sunfish. Agricultural withdrawals can reduce or eliminate the volume of 
groundwater that is being discharged into the species' habitat and 
affect water temperatures and other physical parameters.
    Temperature greatly influences the form and toxicity of ammonia and 
chlorine. Higher temperatures result in a shift from the nontoxic 
ammonium ion (NH4\+\) to highly toxic ammonia (NH3). Chlorine is also 
more toxic at higher temperatures (Hoffman et al. 2003, p. 681). Thus, 
higher temperatures during the summer, along with drought and reduced 
spring flows, may intensify impacts from these two chemicals on the 
life stages and habitats of the spring pygmy sunfish.
    Therefore, we identify the following water quality parameters to be 
an essential physical or biological feature for the spring pygmy 
sunfish, based on yearly averages: Optimal temperatures of 57.2 to 
68[emsp14][deg]F (14 to 20 [deg]C) and not exceeding 80[emsp14][deg]F 
(26.7 [deg]C); pH of 6.0 to 7.7; dissolved oxygen of 6.0 ppm or 
greater; specific conductivity no greater than 300 micro Siemens per 
centimeter at 80[emsp14][deg]F (26.7 [deg]C); and low concentrations of 
free or suspended solids with turbidity measuring less than 15 NTU and 
20 mg/L TSS.
Water Quantity
    Water flow and water quantity may also vary according to season, 
precipitation events, and human activities, such as groundwater and 
surface water extraction, within the recharge area of the spring 
system. Agriculture, industrial or human consumption, silviculture, 
maintenance of roadways and utilities, and urbanization and 
industrialization projects are activities that may use water that would 
otherwise recharge spring systems. Connectivity of spring systems is 
also important for maintaining water quality. Adequate groundwater and 
recharge rates, and spring water outflow, are important to the 
conservation of the spring pygmy sunfish.
    Therefore, based on the information above, we identify a hydrologic 
flow regime (magnitude, frequency, duration, and seasonality of 
discharge overtime) necessary to maintain spring habitats to be an 
essential physical or biological feature for the spring pygmy sunfish. 
The instream flow from groundwater sources (spring and seep) maintains 
a velocity and a continuous daily discharge from the aquifer that 
allows for connectivity between habitats. Instream flow is stable and 
does not vary during water extraction, and the aquifer recharge 
maintains adequate levels to supply water flow to the spring head. The 
flow regime does not significantly change during storm events.
Food
    All pygmy sunfish species stalk invertebrates by using the dense 
submergent vegetation within the spring system to conceal their 
foraging activity (Walsh and Burr 1984, pp. 45-46). The aquatic 
vegetation provides a ready source of food (Petty et al. 2011, p. 2) 
and habitat for invertebrates. Daphnia, amphipods, chironomid larvae, 
and small snails are the major components of the spring pygmy sunfish's 
diet (Slate 1993, p. 3; Sandel 2009, p. 9).
Cover or Shelter and Sites for Breeding, Reproduction, or Rearing
    The spring pygmy sunfish relies heavily on aquatic and emergent 
vegetation in the shallow water along the margins of the runs and pools 
of the spring systems where the fish occurs. The vegetation provides 
cover and shelter necessary for breeding, reproduction and growth of 
offspring, concealment from predators, and foraging. Species of 
submergent and emergent vegetation providing important habitat for the 
spring pygmy sunfish include clumps and stands of Sparganium spp. (bur 
reed), Ceratophyllum spp. (coontail), Nasturtium officinale 
(watercress), Juncus spp. (rush), Carex spp. (sedges), Nuphar luteum 
(yellow pond lily), Myriophyllum spp. (parrot feather), Utricularia sp. 
(bladderwort), Polygonum spp. (smartweed), Lythrum salicaria (purple 
loosestrife), and Callitriche spp. (water starwort) (Mayden 1993, p. 
11; Jandebeur 1997, pp. 42-44; Sandel 2011, pp. 3-5, 9-11). Sandel 
(2009, p. 14) suggested that concentration of spring pygmy sunfish may 
be associated with thick and abundant Ceratophyllum echinatum and that 
the species decreases as distances increase from spring pools.
    Therefore, based on the information above, we identify aquatic, 
emergent and semi-emergent vegetation along the margins of spring runs 
and submergent vegetation that is adequate for breeding, reproducing, 
and rearing young; providing cover and shelter from predators; and 
supporting the prey base of aquatic macroinvertebrates eaten by spring 
pygmy sunfish to be an essential physical or biological feature for the 
spring pygmy sunfish.
Primary Constituent Elements for the Spring Pygmy Sunfish
    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of the spring pygmy sunfish in areas occupied at the time 
of listing (i.e., areas that are currently occupied), focusing on the 
features' primary constituent elements. We consider primary constituent 
elements (PCEs) to be the elements of physical and biological features 
that provide for a species' life-history processes and that are 
essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, as discussed above, we determine that the PCEs 
specific to the spring pygmy sunfish are:
    (1) Spring system. Springs and connecting spring-fed reaches and 
wetlands that are geomorphically stable and relatively low-gradient. 
This includes headwater springs with spring heads, spring runs, and 
spring pools that filter into shallow, vegetated wetlands.
    (2) Water quality. Yearly averages of water quality with optimal 
temperatures of 57.2 to 68[emsp14][deg]F (14 to 20 [deg]C) and not 
exceeding 80[emsp14][deg]F (26.7 [deg]C); pH of 6.0 to 7.7; dissolved 
oxygen of 6.0 ppm or greater; specific conductivity no greater than 300 
micro Siemens per centimeter at 80[emsp14][deg]F (26.7 [deg]C); and low 
concentrations of free or suspended solids with turbidity measuring 
less than 15 NTU and 20 mg/L TSS.
    (3) Hydrology. A hydrologic flow regime (magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
spring habitats. The instream flow from groundwater sources (springs 
and seeps) maintains an adequate velocity and a continuous daily 
discharge from the aquifer that allows for connectivity between 
habitats. Instream flow is stable and does not vary during water 
extraction, and the aquifer recharge maintains

[[Page 60195]]

adequate levels to supply water flow to the spring head. The flow 
regime does not significantly change during storm events.
    (4) Vegetation and Prey Base. Aquatic, emergent and semi-emergent 
vegetation along the margins of spring runs and submergent vegetation 
that is adequate for breeding, reproducing, and rearing young; 
providing cover and shelter from predators; and supporting the prey 
base of aquatic macroinvertebrates eaten by spring pygmy sunfish. 
Important species of submergent and emergent vegetation include clumps 
and stands of Sparganium spp. (bur reed), Ceratophyllum spp. 
(coontail), Nasturtium officinale (watercress), Juncus spp. (rush), 
Carex spp. (sedges), Nuphar luteum (yellow pond lily), Myriophyllum 
spp. (parrot feather), Utricularia spp. (bladderwort), Polygonum spp. 
(smartweed), Lythrum salicaria (purple loosestrife), and Callitriche 
spp. (water starwort).

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    We find that the essential features within the area occupied at the 
time of listing may require special management consideration or 
protection due to threats to spring pygmy sunfish and or its habitat. 
The sole proposed unit that is occupied is adjacent to roads, homes, or 
other manmade structures in which various activities in or adjacent to 
the critical habitat unit may affect one or more of the physical and 
biological features. The features essential to the conservation of this 
species are the spring systems that may require special management 
considerations or protection to reduce the following threats or 
potential threats: Reduction of water quantity of the groundwater/
surface hydrology by water extraction from springs or the aquifer that 
provides water to the spring, and surface flow to Beaverdam Creek and 
Pryor Branch; changes in the composition and abundance of vegetation in 
the spring; alteration of the bottom substrate and normal sinuosity of 
the system from fill material within the spring systems and spring-fed 
wetlands for development projects; degradation of water quality from 
uncontrolled discharge of stormwater draining agricultural fields, 
roads, bridges, and urban areas; careless agricultural practices 
including unmanaged livestock grazing; and road, bridge, and utility 
easement maintenance (e.g., use of herbicides and resurfacing or 
sealant materials).
    Management activities that could ameliorate these threats or 
potential threats include, but are not limited to: Establishing 
permanent conservation easements or land acquisition to protect the 
species on private lands; establishing additional conservation 
agreements on private lands to identify and reduce threats to the 
species and its features; minimizing habitat disturbance, 
fragmentation, and destruction by maintaining suitable fish passage 
structures under roads; providing significant buffers around the spring 
components such as the spring head, spring pool, and spring run; 
monitoring and regulating the withdrawal and use of groundwater and 
surface water of the Beaverdam Spring/Creek system; preventing the 
diminishing of the aquifer recharge area by increasing the pervious 
area for percolation of rainfall back into the aquifer; limiting 
impervious substrates; and minimizing water quality degradation by 
stormwater runoff with catchment basins, vegetated bioswales, and other 
appropriate best management practices.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, in developing this 
proposed rule, we used the best scientific data available to propose 
critical habitat for the spring pygmy sunfish. We reviewed available 
information that pertains to the habitat requirements of the species. 
In accordance with the Act and its implementing regulation at 50 CFR 
424.12(e), we considered whether designating additional areas outside 
those currently occupied (which would mean occupied at the time of 
listing) is necessary to ensure the conservation of the species. We are 
proposing to designate critical habitat in areas within the geographic 
area currently occupied by the species (i.e., that would be considered 
occupied at the time of listing). We are also proposing to designate 
specific areas outside the geographic area currently occupied by the 
species but that were historically occupied, because such areas are 
essential for the conservation of the species.
    We began our determination of which areas to propose for critical 
habitat with an assessment of the critical life-history components of 
the spring pygmy sunfish, as they relate to habitat. We then evaluated 
current and historical sites to establish what areas are currently 
occupied and contain the physical and biological features that are 
essential to the conservation of the species and that may require 
special management considerations or protection, as well as unoccupied 
sites that might be essential for the conservation of the species. We 
reviewed the available information pertaining to historic and current 
distributions, life histories, and habitat requirements of this 
species. Our sources included surveys, unpublished reports, and peer-
reviewed scientific literature prepared by the Alabama Department of 
Conservation and Natural Resources, Alabama Geological Survey, Athens 
State University, University of Alabama, the Service, spring pygmy 
sunfish researchers and others, as well as Geographic Information 
System (GIS) data (such as species occurrence data, habitat data, land 
use topography, digital aerial photography, and ownership maps).
    Currently, occupied habitat is confined to a single population 
consisting of four spring pools within the upper Beaver Dam Spring/
Creek complex in Limestone County, Alabama. We believe that this area 
contains all PCEs to support life-history functions essential to the 
conservation of the species. However, this single population is at risk 
of extirpation from stochastic events such as periodic droughts and 
from existing or potential human-induced events (i.e., development, 
excessive water extraction, chemical contamination). To reduce the risk 
of losing this single population through these processes, it is 
important to establish additional populations in areas where suitable 
habitat exists. Therefore, in identifying unoccupied spring/stream 
reaches that could be essential for the conservation of the spring 
pygmy sunfish, we first considered the availability of potential 
habitat throughout the historical range that may be suitable for the 
survival and persistence of the species. We eliminated from 
consideration spring/stream reaches without any historical records of 
spring pygmy sunfish occurrences. We identified two sites with recorded 
historical occurrences of the spring pygmy sunfish: one in Pryor 
Springs in Limestone County, Alabama, and a second in Cave Springs in 
Lauderdale County, Alabama. The Cave Spring site was excluded from 
consideration because it was inundated with the formation of Wheeler 
Reservoir in 1939. However, the Pryor Spring/Branch site, which 
supported a population of spring pygmy sunfish prior to 2007 west of 
Highway 31, was

[[Page 60196]]

determined to have portions of the PCEs sufficient to support the life-
history functions of the species. This currently unoccupied stream will 
provide habitat for population reintroduction into a separate stream 
system and reduce the level of stochastic threats to the species' 
survival, decrease the risk of extinction for the species, and 
contribute to the species' eventual recovery. Accordingly, we 
determined that it is essential for the conservation of the species, 
and therefore propose to designate it as critical habitat.
    We delineated the critical habitat unit boundaries by determining 
the appropriate length within these streams by identifying the upper 
spring head (water source), spring pool, spring run, spring-fed 
wetlands, seeps, and ephemeral streams draining into the spring 
systems. We digitized the area boundary based upon visual 
interpretation of wetland vegetation using ARCGIS. The high water line 
in springs indicates stable flow under normal conditions. As defined at 
33 CFR 329.11, the ordinary high water line on nontidal rivers and 
streams is the line on the shore established by the fluctuations of 
water and indicated by physical characteristics such as a clear, 
natural water line impressed on the bank; shelving; changes in the 
character of soil; destruction of terrestrial vegetation; the presence 
of litter and debris; or other appropriate means that consider the 
characteristics of the surrounding areas. For the spring pools and 
associated spring-fed wetlands, the area was determined and delineated 
by the presence of emergent vegetation patterns and topography as noted 
on aerial photographs and topographical maps, and during field visits. 
In order to set the upstream and downstream limits of these critical 
habitat units, we used the spring head as the uppermost point, 
identified by topographic maps, field visits, and available landmarks 
(i.e., bridges and road crossings). Locations of the spring pygmy 
sunfish below or downstream of the spring head were included in order 
to ensure incorporation of all potential sites of occurrence. These 
stream reaches were then digitized using 7.5' topographic maps and 
ARCGIS to produce the critical habitat maps.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features for spring pygmy sunfish. The scale of 
the map we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger a section 7 consultation with respect to critical habitat and 
the requirement of no adverse modification unless the specific action 
would affect the physical or biological features in the adjacent 
critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in this preamble. 
We will make the coordinates or plot points or both on which each map 
is based available to the public on http://www.regulations.gov at 
Docket No. FWS-R4-ES-2012-0068, on our Web site http://www.fws.gov/mississippiES/, and at the Mississippi Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

    We are proposing two units as critical habitat for spring pygmy 
sunfish. The critical habitat areas described below constitute our 
current best assessment of the areas that meet the definition of 
critical habitat for spring pygmy sunfish. The two areas proposed as 
critical habitat are as follows: (1) Beaverdam Spring/Creek, which is 
currently occupied; and (2) Pryor Spring/Branch, which is currently 
unoccupied. Table 1 shows the occupancy of the units and ownership of 
the proposed critical habitat units for the spring pygmy sunfish.

            Table 1--Occupancy and Ownership of the Proposed Critical Habitat Units for the Spring Pygmy Sunfish in Limestone County, Alabama
                                      [Area estimates reflect all land within the critical habitat unit boundary.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Private ownership km  Federal ownership km   Total length    Total area ha
               Unit                      Location              Occupied           (mi); ha (ac)         (mi); ha (ac)         km (mi)          (ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................................  Beaverdam Spring/     Yes................  5.9 (3.7); 237 (586)       3.5 (2.21); 344       9.5 (5.9)   580.7 (1,435)
                                    Creek.                                                                         (849)
2................................  Pryor Spring/Branch.  No.................  0.2 (0.15); 8.1 (20)      3.1 (1.95); 65.6       3.4 (2.1)      73.6 (182)
                                                                                                                   (162)
                                  ----------------------------------------------------------------------------------------------------------------------
    Total........................  ....................  ...................  6.1 (3.8); 245 (606)     6.6 (4.16); 409.6      12.9 (8.0)   654.3 (1,617)
                                                                                                                 (1,011)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.

    We present brief descriptions of each unit and reasons why they 
meet the definition of critical habitat below. The proposed critical 
habitat units include the spring systems, which are composed of the 
spring heads and the flooded spring pools and spring-fed wetlands 
within Beaverdam Spring/Creek and Pryor Spring/Branch.

Unit 1: Beaverdam Spring/Creek, Limestone County, Alabama

    Unit 1 includes a total of 9.5 km (5.9 mi) of Beaverdam Spring/
Creek, northeast of Greenbrier, Alabama, from the spring head, 5.6 km 
(3.5 mi) north of Interstate 565, to 3.9 km (2.4 mi) south of 
Interstate 565. Unit 1 encompasses Moss, Horton, and Thorsen springs. 
This includes a total of 580.7 hectares (1,435 acres).
    Almost 5.9 km (3.7 mi), or 63 percent of the stream reach, and 237 
ha (586 ac) (41 percent) of the area are privately owned. The remaining 
3.5 km (2.21 mi), or 37 percent of the stream reach, and 344 ha (849 
ac) of the area (59 percent) are owned by the Service as part of the 
Wheeler National Wildlife Refuge.
    Unit 1 is currently occupied and contains the only known 
metapopulation of the species. Unit 1 contains all elements of the 
essential physical or biological features of the

[[Page 60197]]

species needed for its eventual recovery. This unit provides habitat 
for the spring pygmy sunfish with adequate numbers of small pools, 
spring runs (PCE 1), and emergent vegetation (PCE 4). These geomorphic 
structures provide substrate for aquatic vegetation that is used by the 
species for spawning, foraging, and other processes of the species 
natural history (PCE 4) along with good water quality (PCE 2), 
quantity, and flow (PCE 3), which supports the normal life stages and 
behavior of the spring pygmy sunfish, and the species' prey sources 
(PCE 4).
    Threats to the spring pygmy sunfish and its habitat in Unit 1 that 
may require special management of the physical and biological features 
include the potential of increased agriculture, urbanization, and 
industrialization activities (such as channel modification for flood 
control, construction of impoundments, and water extraction) that could 
result in increased stormwater runoff and erosion; significant changes 
in the existing spring flow regime due to water extraction, inadequate 
stormwater management, and water diversion; significant alteration of 
water quality and quantity; and significant changes in streambed 
material composition and quality as a result of construction projects 
and maintenance activities, resulting in the destruction of emergent 
and aquatic vegetation; off-road vehicle use; sewer, gas, and water 
easements; bridge and road construction and maintenance; culvert and 
pipe installation; and other watershed and floodplain disturbances that 
release sediments or nutrients into the water.
    There are three paved road crossings over this unit, one unpaved 
dirt road, and one railroad. Spring pygmy sunfish movement might be 
limited due to changes in flow regime and habitat including changes in 
emergent vegetation, water quality, and water quantity, and due to 
stochastic events such as drought. Populations of spring pygmy sunfish 
are small and isolated from one another due to the non-homogeneous 
habitats within Unit 1.

Unit 2: Pryor Spring/Pryor Branch, Limestone County, Alabama

    Unit 2 includes 3.4 km (2.1 mi) of Pryor Spring and Pryor Branch 
from the spring head, about 3.7 mi (5.9 km) south of Tanner, Alabama, 
and just east of Highway 31, downstream to the bridge where it 
intersects with Harris Station/Thomas L. Hammons Road. This also 
includes a total of 73.6 ha (182 ac) in area.
    Almost 3.1 km (1.95 mi), or 93 percent of the stream reach, and 
65.6 ha (162 ac) of the land area (89 percent) are federally owned by 
the Tennessee Valley Authority and managed by the State as the Swan 
Creek Wildlife Management Area. The remaining 0.2 km (0.15 mi) of 
stream reach (7 percent) and 8.1 ha (20 ac) (11 percent) of the land 
area are privately owned.
    Unit 2 is currently unoccupied but is a historical location for the 
spring pygmy sunfish, and is essential for its conservation and 
eventual recovery. The Pryor Spring/Branch system contains scattered 
spring-influenced wetlands of aquatic and emergent vegetation in spring 
pools, spring runs, and shallow water wetlands on the margins of the 
small tributaries. Populations of spring pygmy sunfish were 
historically noted as small and isolated within specific habitat sites 
of Pryor Spring/Branch. An attempt to reintroduce the species back into 
Pryor Springs (east of Highway 31) was unsuccessful in the 1980s.
    A portion of the spring head has been mechanically deepened and the 
banks steepened in order to promote water extraction for cropland 
irrigation. Nevertheless, there is a significant seasonal flow of 
groundwater entering the system throughout the year from the springhead 
(portions of PCEs 1, 2, and 3). Adequate aquatic vegetation (PCE 4) 
occurs in areas throughout this spring system, providing potential 
habitat for the normal life stages and behavior of the spring pygmy 
sunfish and the species' prey sources. Water flow (PCE 3) from the main 
springhead, along with other unidentified springs and seeps within the 
system, provides sufficient water quantity to allow for connectivity 
between spawning, rearing, foraging, and resting sites, promoting gene 
flow throughout the spring system. While the existence of PCEs is not 
necessary for the designation of unoccupied habitat, their presence in 
Unit 2 only reinforces the value of the Pryor Spring/Branch to the 
conservation of the spring pygmy sunfish.
    As this species is only known from a single population, it is 
important that additional populations be established to buffer against 
extirpation of the one known site from stochastic events, such as 
drought. Therefore, we have determined this unit is essential for the 
conservation of the species because it provides potential for the 
establishment of an additional population of the spring pygmy sunfish, 
thereby reducing this species' risk of extinction, and would contribute 
to the species' eventual recovery.
    In summary, we propose designating critical habitat in two areas, 
one which is occupied and which contains sufficient primary constituent 
elements to support the life-history functions essential to the 
conservation of the species and that require special management, and 
one which is currently unoccupied, which historically supported the 
species and has been determined to be essential for the conservation of 
the species.
    As discussed in the Critical Habitat section above, we recognize 
that designation of critical habitat may not include all habitat areas 
that we may eventually determine are necessary for the recovery of the 
species and that, for this reason, a critical habitat designation does 
not signal that habitat outside the designated area is unimportant or 
may not promote the recovery of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory 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, 442 (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 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 continue to serve its intended conservation role for the 
species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under

[[Page 60198]]

section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit 
from the Service under section 10 of the Act) or that involve some 
other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local, or 
private lands that are not federally funded or authorized do not 
require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action;
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction;
    (3) Are economically and technologically feasible; and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiating of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the spring pygmy sunfish. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may affect critical habitat, when carried 
out, funded, or authorized by a federal agency, should result in 
consultation for the spring pygmy sunfish. These activities include, 
but are not limited to:
    (1) Actions that would alter the geomorphology of the spring system 
and its associated habitats. Such activities could include, but are not 
limited to, instream excavation or dredging, impoundment, 
channelization, and discharge of fill materials. These activities could 
cause aggradation or degradation of the channel bed elevation or 
significant bank erosion and result in entrainment or burial of this 
species, destruction of the associated aquatic vegetation, and other 
direct or cumulative adverse effects to this species and its life 
cycle.
    (2) Actions that would significantly alter the existing flow 
regime, related aquifer, and recharge areas. Such activities could 
include, but are not limited to, impoundments, water diversion, channel 
constriction or widening, placement of pipes, culverts or bridges, and 
groundwater and surface water extraction. These activities could 
eliminate or reduce the habitat necessary for growth, reproduction, and 
connectivity of spring pygmy sunfish populations.
    (3) Actions that would significantly alter water chemistry or water 
quality (for example, temperature, pH, contaminants, and excess 
nutrients). Such activities could include, but are not limited to, the 
unsustainable use or release of chemicals, such as pesticides and 
fertilizers and biological pollutants, into surface water or 
groundwater. These activities could alter water conditions that are 
beyond the tolerances of this species and result in direct or 
cumulative adverse effects to the species and its life cycle.
    (4) Actions that would significantly alter streambed material 
composition and quality by increasing sediment deposition or 
filamentous algal growth. Such activities could include, but are not 
limited to, construction and maintenance projects of subdivisions, 
roads, bridges, stormwater systems and utility easements; unsustainable 
livestock grazing and timber harvest; off-road vehicle use; and other 
watershed and floodplain disturbances that release sediments or 
nutrients into the water through stormwater runoff. These activities 
could eliminate or reduce habitats necessary for the growth and 
reproduction of the spring pygmy sunfish by causing excessive 
sedimentation and a decrease in water quality for the species and 
associated vegetation and prey base by nitrification, leading to 
excessive filamentous algal growth, turbidity, and an increase in water 
temperatures.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.

[[Page 60199]]

    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed INRMP 
within the proposed critical habitat designation. Therefore, we are not 
exempting any lands owned or managed by the DOD from this designation 
of critical habitat for the spring pygmy sunfish under section 
4(a)(3)(B)(i) of the Act.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
or make revisions to critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary may 
exclude an area from critical habitat if he determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat, unless he determines, based on 
the best scientific data available, that the failure to designate such 
area as critical habitat will result in the extinction of the species. 
In making that determination, the statute on its face, as well as the 
legislative history, are clear that the Secretary has broad discretion 
regarding which factor(s) to use and how much weight to give to any 
factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, and any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors.
    During the development of our proposed rule, we have identified 
certain sectors and activities that may potentially be affected by a 
designation of critical habitat for spring pygmy sunfish. These sectors 
include commercial development and urbanization, along with the 
accompanying infrastructure associated with such projects such as road, 
storm water drainage, bridge, and culvert construction and maintenance. 
As part of our economic analysis, we are collecting information and 
initiating our analysis to determine (1) which of these sectors or 
activities are or involve small business entities and (2) to what 
extent the effects are related to the spring pygmy sunfish being listed 
as a threatened species under the Act (baseline effects) or are 
attributable to the designation of critical habitat (incremental 
effects). We believe that the potential incremental effects resulting 
from a designation would be small. However, one purpose of the economic 
analysis will be to determine if this is the case. Accordingly, we are 
requesting any specific economic information related to small business 
entities that may be affected by this designation and how the 
designation may impact small businesses.
    We will announce the availability of the draft economic analysis as 
soon as it is completed. At that time, copies of the draft economic 
analysis will be available for downloading from the Internet at http://www.regulations.gov, or by contacting the Mississippi Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section). 
During the development of a final designation, we will consider 
economic impacts, public comments, and other new information, and areas 
may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.
National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have determined that none of the lands within the proposed designation 
of critical habitat for the spring pygmy sunfish are lands owned or 
managed by the DOD, and, therefore, we anticipate no impact on national 
security. Consequently, the Secretary does not intend to exercise his 
discretion to exclude any areas from the final designation based on 
impacts on national security.
Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic and national security impacts. We 
consider a number of factors, including whether the landowners have 
developed any HCPs or other management plans for the area, or whether 
there are conservation partnerships that would be encouraged by 
designation of, or exclusion from, critical habitat. In addition, we 
look at any tribal issues, and consider the government-to-government 
relationship of the United States with tribal entities. We also 
consider any social impacts that might occur because of the 
designation.
    In preparing this proposal, we have determined that there are 
currently no HCPs for the spring pygmy sunfish, and the proposed 
designation does not include any tribal lands or trust resources. The 
CCAA between the Service, the Land Trust, and Belle Mina Farms, Ltd., 
covers the upper 24 percent of the Beaverdam Spring/Creek complex (Unit 
1). This management plan contains numerous conservation measures 
protective of the spring pygmy sunfish. It provides a measure of 
protection for the species in the upper portion of the only currently 
occupied site. However, although this CCAA reduces some of threats and 
is one of the reasons the species is proposed for listing as threatened 
rather than endangered, the magnitude of this threat reduction is not 
at the level to ameliorate threats to this species throughout its range 
(see Finding section, above, for additional discussion). Thus, the CCAA 
alone is not sufficient to preclude the need to list the species as 
threatened. We also anticipate no impact on tribal lands, partnerships, 
or HCPs from this

[[Page 60200]]

proposed critical habitat designation. Accordingly, at this time the 
Secretary does not propose to exert his discretion to exclude any areas 
from the final designation based on other relevant impacts. However, we 
recognize that exclusion from critical habitat of the area covered by 
the CCAA may encourage partnerships with other landowners in the spring 
complex that would help address additional threats under Factors A and 
E. Therefore, as indicated in the Information Requested section, we are 
requesting information on whether the benefits of the exclusion of 
lands covered by the CCAA may outweigh the benefits of inclusion under 
section 4(b)(2) of the Act, and the Secretary may reconsider exclusion 
in the final rule.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our determination of status for this species and critical habitat 
designation is based on scientifically sound data, assumptions, and 
analyses. We will invite these peer reviewers to comment during this 
public comment period on our specific assumptions and conclusions in 
this proposed listing determination and designation of critical 
habitat.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, the final decision may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days after the date 
of publication of this proposed rule in the Federal Register. Such 
requests must be sent to the address shown in the FOR FURTHER 
INFORMATION CONTACT section. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review--Executive Order 12866 and 13563

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs 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 rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    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 (5 U.S.C. 801 et seq.), 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. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried by the Agency is not 
likely to adversely modify critical habitat. Therefore, only Federal 
action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the

[[Page 60201]]

necessary analysis, whether or not this analysis is strictly required 
by the RFA. While this regulation does not directly regulate these 
entities, in our draft economic analysis we will conduct a brief 
evaluation of the potential number of third parties participating in 
consultations on an annual basis in order to ensure a more complete 
examination of the incremental effects of this proposed rule in the 
context of the RFA.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies, which are not by definition small business entities. As such, 
we certify that, if promulgated, this designation of critical habitat 
would not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required. However, although not necessarily required by 
the RFA, in our draft economic analysis for this proposal we will 
consider and evaluate the potential effects to third parties that may 
be involved with consultations with Federal action agencies related to 
this action.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. We do not expect the 
designation of critical habitat for the spring pygmy sunfish to 
significantly affect energy supplies, distribution, or use. The 
proposed critical habitat units are remote from energy supply, 
distribution, or use activities. We are not aware of any oil and gas 
exploration or development within the region to date, and the area has 
not been identified as a shale play for oil and gas extraction 
(hydraulic fracturing) (Satterfield 2011, p. 3) Therefore, this action 
is not a significant energy action, and no Statement of Energy Effects 
is required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would 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, 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 tribal 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 tribal 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; Aid to Families 
with Dependent Children 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.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, and critical 
habitat would not shift the costs of the large entitlement programs 
listed above on to State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because it will not produce a Federal 
mandate of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. In addition, adjacent upland properties are 
owned by private entities or State partners. Therefore, a Small 
Government Agency Plan is not required. However, we will further 
evaluate this issue as we conduct our economic analysis and revise this 
assessment if appropriate.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for spring pygmy sunfish in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward. The takings implications assessment 
concludes that this proposed designation of critical habitat for the 
spring pygmy sunfish does not pose significant takings implications for 
lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), the proposed 
rule does not have significant Federalism effects. A federalism impact 
summary statement is not required. In keeping with Department of the 
Interior and Department of Commerce policy, we requested information 
from, and coordinated development of, this proposed critical habitat 
designation with appropriate State resource agencies in Alabama. The 
designation of critical habitat in areas currently occupied by the 
spring pygmy sunfish (i.e., Unit 1: Beaverdam Spring/Creek) would 
impose few if any additional restrictions to those put in place through 
listing, and, therefore, has would have little incremental impact on 
State and local governments and their activities. There may be a slight 
impact on State and local government and their activities if critical 
habitat is designated in Unit 2: Pryor Spring/Pryor Branch, because 
this

[[Page 60202]]

is unoccupied critical habitat. However, critical habitat designation 
may have some benefit for these governments because the areas that 
contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features of the habitat necessary to the conservation of the 
species are specifically identified. This information does not alter 
where and what federally sponsored activities may occur. However, it 
may assist local governments in long-range planning (rather than having 
them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard property descriptions and identifies the 
elements of physical or biological features essential to the 
conservation of the spring pygmy sunfish within the designated areas to 
assist the public in understanding the habitat needs of the species.

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 OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). 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 determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (NEPA), need not be prepared in 
connection with listing a species as endangered or threatened under the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).
    It is also our position that, outside the jurisdiction of the U.S. 
Court of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses under NEPA in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

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 
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.
    The State of Alabama does contain tribal lands, however, none occur 
within the proposed critical habitat designation. Therefore, we are not 
proposing to designate critical habitat for spring pygmy sunfish on 
tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.gov and upon 
request from the Deputy Field Supervisor, Mississippi Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Mississippi Ecological Services Field Office (see FURTHER INFORMATION 
CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

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

    2. Amend Sec.  17.11(h) by adding an entry for ``Sunfish, spring 
pygmy'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under FISHES to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 60203]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              FISHES               ....................  ...................  ...................  ..............  ...........  ...........  ...........
 
                                                                      * * * * * * *
Sunfish, spring pygmy............  Elassoma alabamae...  U.S.A. (AL)........  Entire.............  T               ...........     17.95(e)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    2. In Sec.  17.95, amend paragraph (e) by adding an entry for 
``Spring Pygmy Sunfish (Elassoma alabamae),'' in the same alphabetical 
order that the species appears in the table at Sec.   17.11(h), to read 
as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes.
* * * * *
    Spring Pygmy Sunfish (Elassoma alabamae)
    (1) Critical habitat units are depicted for Limestone County, 
Alabama, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of 
spring pygmy sunfish are:
    (i) Spring system. Springs and connecting spring-fed reaches and 
wetlands that are geomorphically stable and relatively low-gradient. 
This includes headwater springs with spring heads, spring runs, and 
spring pools that filter into shallow, vegetated wetlands.
    (ii) Water quality. Yearly averages of water quality with optimal 
temperatures of 57.2 to 68[emsp14][deg]F (14 to 20 [deg]C) and not 
exceeding 80[emsp14][deg]F (26.7 [deg]C); pH of 6.0 to 7.7; dissolved 
oxygen of 6.0 parts per million (ppm) or greater; specific conductivity 
no greater than 300 micro Siemens per centimeter at 80[emsp14][deg]F 
(26.7 [deg]C); low concentrations of free or suspended solids with 
turbidity measuring less than 15 Nephelometric Turbidity Units (NTU) 
and 20 milligrams per liter (mg/l) total suspended solids (TSS).
    (iii) Hydrology. A hydrologic flow regime (magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
spring habitats. The instream flow from groundwater sources (springs 
and seeps) maintains an adequate velocity and a continuous daily 
discharge from the aquifer that allows for connectivity between 
habitats. Instream flow is stable and does not vary during water 
extraction, and the aquifer recharge maintains adequate levels to 
supply water flow to the spring head. The flow regime does not 
significantly change during storm events.
    (iv) Vegetation and Prey Base. Aquatic, emergent and semi-emergent 
vegetation along the margins of spring runs and submergent vegetation 
that is adequate for breeding, reproducing, and rearing young; 
providing cover and shelter from predators; and supporting the prey 
base of aquatic macroinvertebrates eaten by spring pygmy sunfish. 
Important species of submergent and emergent vegetation include clumps 
and stands of Sparganium spp. (bur reed), Ceratophyllum spp. 
(coontail), Nasturtium officinale (watercress), Juncus spp. (rush), 
Carex spp. (sedges), Nuphar luteum (yellow pond lily), Myriophyllum 
spp. (parrot feather), Utricularia spp. (bladderwort), Polygonum spp. 
(smartweed), Lythrum salicaria (purple loosestrife), and Callitriche 
spp. (water starwort).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat unit maps. Data layers defining the map unit 
were created by delineating habitats that contained at least one or 
more of the primary constituent elements defined in paragraph (2) of 
this entry, over a base of USGS digital topographic map quadrangle 
(Greenbrier and Mason Ridge) and a USDA 2007 digital ortho-photo 
mosaic, in addition to the National Wetland Inventory Maps. The 
resulting critical habitat unit was then mapped using State Plane North 
American Datum (NAD) 83 coordinates. The maps in this entry, as 
modified by any accompanying regulatory text, establish the boundaries 
of the critical habitat designation. The coordinates or plot points or 
both on which each map is based are available to the public at the 
Service's internet site, http://www.fws.gov/mississippiES/; at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0068; and at the field 
office responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) Index map of critical habitat for the spring pygmy sunfish 
follows:
BILLING CODE 4310-55-P

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[GRAPHIC] [TIFF OMITTED] TP02OC12.000

    (6) Unit 1: Beaverdam Spring/Creek, Limestone County, Alabama.
    (i) General Description: Unit 1 includes a total of 9.5 km (5.9 mi) 
of Beaverdam Spring/Creek, northeast of Greenbrier, Alabama, from the 
spring head, 5.6 km (3.5 mi) north of Interstate 565 (Lat. 34.703162, 
Long.-86.82899) to 3.9 km (2.4 mi) south of Interstate 565 (Lat. 
34.625896, Long. -86.82505). Unit 1 encompasses Moss, Horton, and 
Thorsen springs. This includes a total of 580.7 hectares (1,435 acres).
    (ii) Map of Unit 1 follows:

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    (7) Unit 2: Pryor Spring/Pryor Branch, Limestone County, Alabama.
    (i) General Description. Unit 2 includes 3.4 km (2.1 mi) of Pryor 
Spring and Pryor Branch from the spring head, about 3.7 mi (5.9 km) 
south of Tanner, Alabama, and just east of Highway 31, downstream to 
the bridge where it intersects with Harris Station/Thomas L. Hammons 
Road. This also includes a total of 73.6 ha (182 ac) in area.
    (ii) Map of Unit 2 follows:

[[Page 60206]]

[GRAPHIC] [TIFF OMITTED] TP02OC12.002

* * * * *

    Dated: September 13, 2012.
Michael J. Bean,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-23854 Filed 10-1-12; 8:45 am]
BILLING CODE 4310-55-C