80 FR 19050 - Endangered and Threatened Wildlife and Plants; 4(d) Rule for the Georgetown Salamander

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 80, Issue 68 (April 9, 2015)

Page Range		19050-19056
FR Document		2015-08093

We, the U.S. Fish and Wildlife Service, are amending our proposed rule under authority of section 4(d) of the Endangered Species Act of 1973, as amended (Act), that provides measures that are necessary and advisable to provide for the conservation of the Georgetown salamander (Eurycea naufragia), a species that occurs in Texas. We are seeking public comments on this revised proposed rule. We also announce the availability of a draft environmental assessment of this revised proposed rule.

Federal Register, Volume 80 Issue 68 (Thursday, April 9, 2015)

[Federal Register Volume 80, Number 68 (Thursday, April 9, 2015)]
[Proposed Rules]
[Pages 19050-19056]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-08093]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

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

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, are amending our
proposed rule under authority of section 4(d) of the Endangered Species
Act of 1973, as amended (Act), that provides measures that are
necessary and advisable to provide for the conservation of the
Georgetown salamander (Eurycea naufragia), a species that occurs in
Texas. We are seeking public comments on this revised proposed rule. We
also announce the availability of a draft environmental assessment of
this revised proposed rule.

DATES: We will consider comments received or postmarked on or before
May 11, 2015. Comments submitted electronically using the Federal
eRulemaking Portal (see Public Comments, below) must be received by
11:59 p.m. Eastern Time on the closing date.

ADDRESSES: Document availability: You may obtain copies of the original
proposed rule, this revised proposed rule, and the draft environmental
assessment at http://www.regulations.gov at Docket No. FWS-R2-ES-2014-
0008, or by mail from the Austin Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Written comments: You may submit comments on this revised proposed
rule by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2014-0008,
which is the docket number for this rulemaking. Then click on the
Search button. When you have located the correct document, you may
submit a comment by clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R2-ES-2014-0008; Division of Policy,
Performance, and Management Programs; U.S. Fish and Wildlife Service,
MS: BPHC; 5275

[[Page 19051]]

Leesburg Pike; Falls Church, VA 22041-3803.
We request that you send comments only by one of 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 Public Comments section,
below, for more information).

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

SUPPLEMENTARY INFORMATION:

Public Comments

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this revised proposed rule. We particularly
seek comments concerning:
(1) Whether the measures outlined in this revised proposed rule are
necessary and advisable for the conservation and management of the
Georgetown salamander;
(2) The effectiveness of the adaptive management component
incorporated within the measures outlined in this revised proposed
rule; and
(3) Additional provisions the Service may wish to consider for a
rule issued under section 4(d) of the Act (16 U.S.C. 1531 et seq.) in
order to conserve, recover, and manage the Georgetown salamander.
We will consider all comments and information received during our
preparation of a final rule. Accordingly, the final rule may differ
from this proposal.
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, 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.
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, Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Previous Federal Actions

On August 22, 2012, we published a proposed rule to list the
Georgetown salamander (Eurycea naufragia), Salado salamander (Eurycea
chisholmensis), Jollyville Plateau salamander (Eurycea tonkawae), and
Austin blind salamander (Eurycea waterlooensis) as endangered species
and to designate critical habitat for these species under the Act (77
FR 50768). On February 24, 2014, we published a final determination to
list the Georgetown salamander and the Salado salamander as threatened
species under the Act (79 FR 10236), and a proposed rule under section
4(d) of the Act (a proposed 4(d) rule) for the Georgetown salamander
(79 FR 10077). Please see the final listing determination (79 FR 10236)
for additional information concerning previous Federal actions for the
Georgetown salamander.

Background

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

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

Under section 4(d) of the Act, the Secretary may publish a rule
that modifies the standard protections for threatened species and that
contains prohibitions tailored to the conservation of the species and
that are determined to be necessary and advisable. Under this revised
proposed 4(d) rule, the Service would provide that all of the
prohibitions under 50 CFR 17.31 and 17.32 are necessary and advisable
and, therefore, apply to the Georgetown salamander, except as noted
below. This revised proposed 4(d) rule would not remove or alter in any
way the consultation requirements under section 7 of the Act.
On December 20, 2013, the City Council of Georgetown, Texas,
approved the Edwards Aquifer Recharge Zone Water Quality Ordinance
(Ordinance No. 2013-59). In the February 24, 2014, proposed 4(d) rule
(79 FR 10077), the Service proposed that take incidental to activities
that are conducted consistent with the conservation measures contained
in the ordinance would not be prohibited under the Act. Since we
published the proposed 4(d) rule, the City of Georgetown has
incorporated, and expanded upon, the ordinance in their Unified
Development Code (UDC), which is the primary tool to regulate land
development in Georgetown. This revised proposed rule provides greater
clarity around the activities that are proposed to be covered.
For activities outside of habitat occupied by the Georgetown
salamander, we propose that take of Georgetown salamanders that is
incidental to regulated activities that are conducted consistent with
the water quality regulations contained in chapter 11.07 of the City of
Georgetown Unified Development Code (UDC 11.07) (https://udc.georgetown.org/) would not be prohibited under the Act. The water
quality regulations in UDC 11.07 were finalized on February 24, 2015.
Chapter

[[Page 19052]]

11.07 of the UDC describes stream and spring buffers, water quality
best management practices, and geologic assessments that are required
for property development within the Northern Edwards Aquifer Recharge
Zone and the City of Georgetown.
When a property owner submits a development application for a
regulated activity on a tract of land located over the Edwards Aquifer
Recharge Zone, that individual is required to submit a geologic
assessment. The geologic assessment identifies and describes all
springs and streams on any subject property, and the UDC establishes
buffer zones around identified springs and streams. For springs, the
buffer encompasses 50 meters (164 feet) extending from the approximate
center of the spring outlet that is identified in a geologic
assessment. For streams, the boundaries of the buffer must coincide
with either the boundaries of the Federal Emergency Management Agency 1
percent floodplain or a calculated 1 percent floodplain, whichever is
smaller. Thus, these stream buffers may vary depending on the size of
the stream, but they may be no smaller than 200 feet (61 meters) wide
with at least 75 feet (23 meters) from the centerline of the stream.
Section 11.07.003 of the UDC states that no ``regulated activities''
may be conducted within the spring and stream buffers. ``Regulated
activities'' are defined in Title 30, Texas Administrative Code section
213.3(28) as any construction-related or post-construction activities
on the Recharge Zone of the Edwards Aquifer having the potential for
polluting the Edwards Aquifer and hydrologically connected surface
streams. More specific details on spring and stream buffers can be
found in sections 11.07.003A. and B. of the UDC.
In addition to the establishment of these spring and stream
buffers, the UDC outlines water quality best management practices
designed to minimize sediment runoff, increase the removal of total
suspended solids, prevent an increase in flow rates, and ensure spill
containment for new or expanded roadways. These regulations in chapter
11.07 of the UDC are designed to reduce water quality degradation that
may occur as a result of development. By reducing further water quality
degradation that may result from development, these protective measures
are also expected to minimize habitat degradation to the Georgetown
salamander.
The UDC also outlines exemptions from the requirement to prepare a
geologic assessment, the process by which a landowner may request a
variance to the spring and stream buffer requirements, and exemptions
to the spring and stream buffer requirements of section 11.07.003.
Small (less than 5 acres (2 hectares)) single-family and two-family
residential developments are exempt from submitting a geologic
assessment; however, these developments are required to implement UDC
water quality measures. Property owners may request a variance from the
spring or stream buffer requirements. For unoccupied habitat, variances
will be considered by the City of Georgetown's Planning and Zoning
Commission. Properties with a site occupied by the Georgetown
salamander are exempt from the spring and stream buffer requirements in
chapter 11.07. Rather, UDC Appendix A outlines voluntary conservation
measures to be implemented when undertaking regulated activities that
occur on a tract of land with an occupied site, or within 984 feet (300
meters) of an occupied site.
For activities involving habitat occupied by the Georgetown
salamander, we propose that take of the Georgetown salamander that is
incidental to regulated activities that are conducted consistent with
the voluntary guidelines described in Appendix A of the UDC will not be
prohibited under the Act. Similar to chapter 11.07 of the UDC, the
guidelines in Appendix A establish stream and spring buffers and
allowable activities within those buffers; however, the measures
described in Appendix A create larger, more protective buffers than
those that appear in chapter 11 for unoccupied sites. First, Appendix A
establishes a ``No-Disturbance Zone'' in the stream or waterway that a
spring drains directly into; this zone extends 264 feet (80 meters)
upstream and downstream from the approximate center the spring outlet
of an occupied site and is bounded by the top of the bank. No regulated
activities may occur within the ``No-Disturbance Zone.'' In addition,
Appendix A establishes a ``Minimal-Disturbance Zone'' for the
subsurface area that drains to the spring(s) at an occupied site; this
zone consists of the area within 984 feet (300 meters) of the
approximate center of the spring outlet of an occupied site, except
those areas within the ``No-Disturbance Zone.'' Most regulated
activities are also prohibited in the ``Minimal-Disturbance Zone,'' but
single-family developments; limited parks and open space development;
and wastewater infrastructure will be allowed. For additional details
on the buffers around occupied sites and prohibited actions, please
refer to the UDC Appendix A to Chapter 11.
Section 11.07.008 of the UDC also establishes an Adaptive
Management Working Group (Working Group) that is responsible for
reviewing data on a regular basis and making recommendations for
specific changes in the management directions related to the voluntary
conservation measures for occupied sites in Appendix A. Adaptive
management of preservation of the Georgetown salamander is one of the
duties tasked to the Working Group. Therefore, the guidelines described
in Appendix A may change over time. Appendix A also indicates that the
Working Group is authorized to hear and make recommendations to the
Service regarding variances from the voluntary guidelines on a case-by-
case basis and as long as the proposed variance will achieve the same
level or greater level of water quality benefits and conservation
objectives to the Georgetown salamander. The Working Group will also
develop an annual report regarding the preservation of the Georgetown
salamander, continuous monitoring of the Georgetown salamander,
assessment of research priorities, and the effectiveness of the water
quality regulations and guidelines. Copies of the UDC 11.07 and
Appendix A are available at http://www.regulations.gov at Docket No.
FWS-R2-ES-2014-0008.

Proposed Determination

Section 4(d) of the Act states that ``the Secretary shall issue
such regulations as [s]he deems necessary and advisable to provide for
the conservation'' of species listed as threatened species.
Conservation is defined in the Act to mean ``to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to [the Act] are no longer necessary.''
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, the Secretary may find that it
is necessary and advisable not to include a taking prohibition, or to
include a limited taking prohibition. See Alsea Valley Alliance v.
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, and 2002
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule
need not address all the threats to the species. As noted by Congress
when the

[[Page 19053]]

Act was initially enacted, ``once an animal is on the threatened list,
the Secretary has an almost infinite number of options available to him
with regard to the permitted activities for those species. [S]he may,
for example, permit taking, but not importation of such species,'' or
she may choose to forbid both taking and importation but allow the
transportation of such species, as long as the prohibitions, and
exceptions to those prohibitions, will ``serve to conserve, protect, or
restore the species concerned in accordance with the purposes of the
Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
Section 9 prohibitions make it illegal for any person subject to
the jurisdiction of the United States to take (including harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt
any of these), import or export, ship in interstate commerce in the
course of commercial activity, or sell or offer for sale in interstate
or foreign commerce any wildlife species listed as an endangered
species, without written authorization. It also is illegal under
section 9(a)(1) of the Act to possess, sell, deliver, carry, transport,
or ship any such wildlife that is taken illegally. Prohibited actions
consistent with section 9 of the Act are outlined for threatened
wildlife in 50 CFR 17.31(a) and (b). For the Georgetown salamander, the
Service has determined that a 4(d) rule tailored to its specific
conservation needs is appropriate. This revised proposed 4(d) rule
proposes that all prohibitions in 50 CFR 17.31(a) and (b) will apply to
the Georgetown salamander, except as described below.
Under this revised proposed 4(d) rule, incidental take of the
Georgetown salamander will not be considered a violation of section 9
of the Act if the take occurs on privately owned, State, or County land
and from regulated activities that are conducted consistent with the
water quality protection measures contained in chapter 11.07 and
Appendix A of the City of Georgetown Unified Development Code. This
revised proposed 4(d) rule refers to the definition of ``regulated
activities'' in Title 30, Texas Administrative Code section 213.3(28),
which are any construction related or post-construction activities on
the recharge zone of the Edwards Aquifer having the potential for
polluting the Edwards Aquifer and hydrologically connected surface
streams. Our rationale for including this provision is explained in the
paragraphs that follow.
The local community in the City of Georgetown and Williamson County
has expressed a desire to design and implement a local solution to
conserving the natural resources in their county, including water
quality and the Georgetown salamander (City of Georgetown Resolution
No. 082812-N). Because impervious cover levels within most of the
springsheds known to be occupied by the Georgetown salamander are still
relatively low, a window of opportunity exists to design and implement
measures to protect water quality and, therefore, conserve the
salamander. The City and County's approach for accomplishing this
conservation goal includes both regulatory and non-regulatory actions,
as described below. Regulatory actions include passage of the Edwards
Aquifer Recharge Zone Water Quality Ordinance (Ordinance No. 2013-59)
by the Georgetown City Council on December 20, 2013, and the revisions
to their UDC (chapter 11.07) finalized on February 24, 2015. Their
approach also includes nonregulatory actions, such as the technical
guidance provided in Appendix A of the UDC, which outlines additional
conservation measures to protect water quality and to avoid direct
destruction of occupied sites.
Habitat modification, in the form of degraded water quality and
quantity and disturbance of spring sites, is the primary threat to the
Georgetown salamander. The conservation measures in both chapter 11.07
and Appendix A of the UDC provide a variety of water quality protection
measures, such as the creation of buffers around springs and streams
where regulated activities are prohibited, designed to lessen impacts
to the water quality of springs and streams in the Edwards Aquifer
Recharge Zone. Although the UDC addresses water quality, regulating
water quantity and groundwater withdrawal is outside the scope of the
UDC. The UDC is applied throughout the watersheds that contain the
Georgetown salamander. This watershed-level approach works to avoid
incremental environmental degradation that may go unnoticed on a small,
individual project scale. Through this revised proposed 4(d) rule, we
could achieve a greater level of conservation for the Georgetown
salamander than we could without it because it encourages
implementation of the water quality protective measures that are likely
to limit habitat degradation for Georgetown salamanders. The majority
of salamanders occur within 164 feet (50 meters) of a spring outlet;
this coincides with the spring and stream buffers for unoccupied sites.
We also believe the salamander populations exist through underground
conduits that may extend 984 feet (300 meters) around cave or spring
points; this area coincides with the size of the ``Minimal-
Disturbance'' Zones for occupied sites. By limiting development
activities within these respective areas, the measures in the UDC 11.07
and Appendix A are expected to limit water quality degradation in these
areas that may provide suitable surface or subsurface habitat for the
Georgetown salamander regardless of occupancy. In addition, although
the areas that provide recharge and the source water for specific areas
occupied by the salamander have not been precisely delineated, this
watershed-level approach makes it likely that these unknown recharge
areas are covered under the UDC. This is because the UDC requires
buffers around all springs and streams where regulated activities are
prohibited; thus, water quality impacts are expected to be limited.
This watershed-level approach also includes an adaptive management
component that will allow the Adaptive Management Working Group
(Working Group) to evaluate the response of salamander populations to
management actions and quickly respond and recommend adjustments, if
necessary, to management strategies to protect water quality consistent
with conserving the Georgetown salamander. The UDC formalizes the
Working Group with representatives from the City of Georgetown,
Williamson County, Texas Commission on Environmental Quality, Texas
Parks and Wildlife Department, university scientists, private real
estate developers, and the U.S. Fish and Wildlife Service. The role of
the Working Group is to:
Review scientific information to understand the latest
science on watershed management practices and the conservation of the
Georgetown salamander;
Recommend support for additional Georgetown salamander
scientific studies and oversee a long-term monitoring program to ensure
that salamander abundance at monitored locations are stable or
improving;
Conduct and evaluate water quality trend analysis as part
of its long-term monitoring program to ensure water quality conditions
do not decline and, in turn, result in impacts to salamander abundance;
and
Make recommendations for changes to the UDC Appendix A for
occupied sites if scientific and monitoring information indicates that
water quality and salamander protection measures need changes to
minimize impacts to salamander populations and to attain the goal of
species conservation.

[[Page 19054]]

While a window of opportunity exists to design and implement
conservation measures to conserve the Georgetown salamander, human
population levels and development are expected to increase rapidly in
Williamson County (Texas State Data Center 2012, pp. 166-167).
Therefore, the success of the local community's efforts will depend on
this robust adaptive management program designed to monitor and quickly
assess the effectiveness of the identified conservation measures and
strategies in attaining the goal of species' conservation, and to
respond quickly and adapt the measures and strategies as needed to
attain the goal. The adaptive management approach will ensure that the
water quality protective measures are serving their intended purpose of
conserving the Georgetown salamander, thereby providing for the
conservation of the species. Adaptive management measures related to
UDC 11.07 and Appendix A that are agreed upon by the Working Group and
consistent with the goal of preserving the Georgetown salamander would
be covered under this revised proposed 4(d) rule.
By not prohibiting incidental take resulting from regulated
activities conducted in accordance with the UDC 11.07 and Appendix A,
the Service is supporting and encouraging a local solution to
conservation of the Georgetown salamander. This revised proposed 4(d)
rule would provide the Service the opportunity to work cooperatively,
in partnership with the local community and State agencies, on
conservation of the Georgetown salamander and the ecosystems on which
it depends. Leveraging our conservation capacity with that of the
State, local governments, and the conservation community at large may
make it possible to attain biological outcomes larger than those we
could attain ourselves due to the watershed-scale protection the UDC
requires. Further, these local partners are better able to design
solutions that minimize socioeconomic impacts, thereby encouraging
participation in measures that will protect water quality and conserve
the Georgetown salamander. In addition, by not prohibiting incidental
take resulting from regulated activities conducted in accordance with
UDC 11.07 and Appendix A, the Service is providing a streamlining
mechanism for compliance with the Act for those project proponents who
comply with the protective measures in the UDC 11.07 and Appendix A
and, thus, would be covered by this revised 4(d) rule. Developers who
comply with these protective measures outlined in this proposed rule
can implement their projects without any potential delay from seeking
incidental take coverage from the Service, while also minimizing water
quality degradation; this simple approach makes streamlined compliance
more enticing for project proponents and is likely to result in
increased implementation of water quality protective measures that
benefit salamanders than would occur otherwise.
Based on the rationale explained above, the provisions included in
this revised proposed 4(d) rule are necessary and advisable to provide
for the conservation of the Georgetown salamander. If an activity that
may affect the species is not regulated by UDC 11.07 or is not in
accordance with the UDC 11.07 and Appendix A, or a person or entity is
not in compliance with all terms and conditions of the UDC 11.07 and
Appendix A, and the activity would result in an act that would be
otherwise prohibited under 50 CFR 17.31, then provisions of 50 CFR
17.31 and 17.32 for threatened species will apply. In such
circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and
authorization under 50 CFR 17.32 would be required.
In addition, nothing in this revised proposed 4(d) rule affects in
any way other provisions of the Act such as the designation of critical
habitat under section 4, recovery planning provisions of section 4(f),
and consultation requirements under section 7.

Draft Environmental Assessment

The Service is conducting a National Environment Policy Act (NEPA;
42 U.S.C. 4321 et seq.) analysis and has prepared a draft environmental
assessment (EA) to address potential impacts of this revised proposed
4(d) rule. The NEPA analysis accomplishes three goals: (1) Determine if
any action, or the absence of action, will have significant
environmental impacts; (2) identify any unavoidable adverse effects;
and (3) provide a basis for a decision on a proposal. The draft EA and
this revised proposed 4(d) rule are being made available concurrently;
both are available for a 30-day period for public review and comment
(see the DATES and ADDRESSES sections, above). The Service will analyze
and consider all substantive comments we receive on both the draft EA
and revised proposed 4(d) rule before issuing a final 4(d) rule.

Peer Review

In accordance with our joint policy 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 revised proposed rule. We will send peer reviewers
copies of this revised proposed rule immediately following publication
in the Federal Register. We will invite these peer reviewers to
comment, during the reopening of the public comment period, on our use
and interpretation of the science used in developing our revised
proposed 4(d) rule.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996)), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a

[[Page 19055]]

substantial number of small entities. Thus, for a regulatory
flexibility analysis to be required, impacts must exceed a threshold
for ``significant impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). Based on the information that
is available to us at this time, we certify that this regulation will
not have a significant economic impact on a substantial number of small
entities. The following discussion explains our rationale.
On February 24, 2014 (79 FR 10236), we published the final
determination to list the Georgetown salamander as a threatened
species. That rule became effective on March 26, 2014. As a result, the
Georgetown salamander is currently covered by the full protections of
the Act, including the full section 9 prohibitions that make it illegal
for any person subject to the jurisdiction of the United States to take
(including harass, harm, pursue, shoot, wound, kill, trap, capture, or
collect; or attempt any of these), import or export, ship in interstate
commerce in the course of commercial activity, or sell or offer for
sale in interstate or foreign commerce any wildlife species listed as
an endangered species, without written authorization. It also is
illegal under section 9(a)(1) of the Act to possess, sell, deliver,
carry, transport, or ship any such wildlife that is taken illegally.
Prohibited actions consistent with section 9 of the Act are outlined
for threatened species in 50 CFR 17.31(a) and (b). This revised
proposed 4(d) rule proposes that all prohibitions in 50 CFR 17.31(a)
and (b) will apply to the Georgetown salamander, except regulated
activities that are conducted consistent with the water quality
protective measures contained in Chapter 11.07 and Appendix A of the
Unified Development Code, which would result in a less restrictive
regulation under the Act, as it pertains to the Georgetown salamander,
than would otherwise exist. For the above reasons, we certify that if
promulgated, the revised proposed rule would not have a significant
economic impact on a substantial number of small entities. Therefore,
an initial regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act

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

Takings

In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. We have determined that the
rule has no potential takings of private property implications as
defined by this Executive Order because this revised proposed 4(d0 rule
would result in a less-restrictive regulation under the Endangered
Species Act than would otherwise exist. A takings implication
assessment is not required.

Federalism

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

Civil Justice Reform

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

Energy Supply, Distribution or Use (Executive Order 13211)

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

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:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the proposed 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.

[[Page 19056]]

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

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

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

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

Government-to-Government Relationship With Tribes

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

Authors

The primary authors of this proposed rule are the staff members of
the Austin Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT) and the Southwest Regional Office.

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 further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended at 79 FR 10077 (February 24, 2014) as set forth below:

PART 17--[AMENDED]

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

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

0
2. Amend Sec. 17.43 by revising paragraph (e)(2), as proposed to be
added on February 24, 2014 (79 FR 10077), to read as follows:

Sec. 17.43 Special rules--amphibians.

* * * * *
(e) * * *
(2) Exemptions from prohibitions. Incidental take of the Georgetown
salamander will not be considered a violation of section 9 of the Act
if the take occurs on privately owned, State, or county land from
regulated activities that are conducted consistent with the water
quality protection measures contained in chapter 11.07 and Appendix A
of the City of Georgetown (Texas) Unified Development Code (UDC) dated
February 24, 2015.
* * * * *

Dated: March 31, 2015.
Robert Dreher,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-08093 Filed 4-8-15; 8:45 am]
BILLING CODE 4310-55-P

Federal Register / Vol. 80, No. 68 / Thursday, April 9, 2015 / Proposed Rules 19051

Leesburg Pike; Falls Church, VA 22041– Comments and materials we receive, species, under the authority of section
3803. as well as supporting documentation we 4(d) of the Act, the Service may develop
We request that you send comments used in preparing this proposed rule, specific prohibitions and exceptions
only by one of the methods described will be available for public inspection that are tailored to the specific
above. We will post all comments on on http://www.regulations.gov, or by conservation needs of the species. In
http://www.regulations.gov. This appointment, during normal business such cases, some of the prohibitions and
generally means that we will post any hours, at the U.S. Fish and Wildlife authorizations under 50 CFR 17.31 and
personal information you provide us Service, Austin Ecological Services 17.32 may be appropriate for the species
(see the Public Comments section, Field Office (see FOR FURTHER and incorporated into a rule under
below, for more information). INFORMATION CONTACT). section 4(d) of the Act. However, these
FOR FURTHER INFORMATION CONTACT: rules, known as 4(d) rules, will also
Previous Federal Actions
Adam Zerrenner, Field Supervisor, U.S. include provisions that are tailored to
Fish and Wildlife Service, Austin On August 22, 2012, we published a the specific conservation needs of the
Ecological Services Field Office, 10711 proposed rule to list the Georgetown threatened species and may be more or
Burnet Rd, Suite 200, Austin, TX 78758; salamander (Eurycea naufragia), Salado less restrictive than the general
telephone 512–490–0057; facsimile salamander (Eurycea chisholmensis), provisions at 50 CFR 17.31.
512–490–0974. Persons who use a Jollyville Plateau salamander (Eurycea
tonkawae), and Austin blind Provisions of the Revised Proposed 4(d)
telecommunications device for the deaf Rule for the Georgetown Salamander
(TDD) may call the Federal Information salamander (Eurycea waterlooensis) as
Relay Service (FIRS) at 800–877–8339. endangered species and to designate Under section 4(d) of the Act, the
SUPPLEMENTARY INFORMATION: critical habitat for these species under Secretary may publish a rule that
the Act (77 FR 50768). On February 24, modifies the standard protections for
Public Comments 2014, we published a final threatened species and that contains
We intend that any final action determination to list the Georgetown prohibitions tailored to the conservation
resulting from this proposal will be as salamander and the Salado salamander of the species and that are determined
accurate and as effective as possible. as threatened species under the Act (79 to be necessary and advisable. Under
Therefore, we request comments or FR 10236), and a proposed rule under this revised proposed 4(d) rule, the
suggestions on this revised proposed section 4(d) of the Act (a proposed 4(d) Service would provide that all of the
rule. We particularly seek comments rule) for the Georgetown salamander (79 prohibitions under 50 CFR 17.31 and
concerning: FR 10077). Please see the final listing 17.32 are necessary and advisable and,
(1) Whether the measures outlined in determination (79 FR 10236) for therefore, apply to the Georgetown
this revised proposed rule are necessary additional information concerning salamander, except as noted below. This
and advisable for the conservation and previous Federal actions for the revised proposed 4(d) rule would not
management of the Georgetown Georgetown salamander. remove or alter in any way the
salamander; consultation requirements under section
Background
(2) The effectiveness of the adaptive 7 of the Act.
management component incorporated The Georgetown salamander is On December 20, 2013, the City
within the measures outlined in this entirely aquatic and depends on water Council of Georgetown, Texas, approved
revised proposed rule; and from the Edwards Aquifer in sufficient the Edwards Aquifer Recharge Zone
(3) Additional provisions the Service quantity and quality to meet its life- Water Quality Ordinance (Ordinance
may wish to consider for a rule issued history requirements for survival, No. 2013–59). In the February 24, 2014,
under section 4(d) of the Act (16 U.S.C. growth, and reproduction. Degradation proposed 4(d) rule (79 FR 10077), the
1531 et seq.) in order to conserve, of habitat, in the form of reduced water Service proposed that take incidental to
recover, and manage the Georgetown quality and quantity and disturbance of activities that are conducted consistent
salamander. spring sites, is the main threat to this with the conservation measures
We will consider all comments and species. For more information on the contained in the ordinance would not
information received during our Georgetown salamander and its habitat, be prohibited under the Act. Since we
preparation of a final rule. Accordingly, please refer to the February 24, 2014, published the proposed 4(d) rule, the
the final rule may differ from this final listing determination (79 FR City of Georgetown has incorporated,
proposal. 10236). and expanded upon, the ordinance in
You may submit your comments and The Act does not specify particular their Unified Development Code (UDC),
materials concerning this proposed rule prohibitions, or exceptions to those which is the primary tool to regulate
by one of the methods listed in prohibitions, for threatened species. land development in Georgetown. This
ADDRESSES. We request that you send Instead, under section 4(d) of the Act, revised proposed rule provides greater
comments only by the methods the Secretary of the Interior has the clarity around the activities that are
described in ADDRESSES. discretion to issue such regulations as proposed to be covered.
If you submit information via http:// she deems necessary and advisable to For activities outside of habitat
www.regulations.gov, your entire provide for the conservation of such occupied by the Georgetown
submission—including any personal species. The Secretary also has the salamander, we propose that take of
identifying information—will be posted discretion to prohibit by regulation, Georgetown salamanders that is
on the Web site. If your submission is with respect to any threatened wildlife incidental to regulated activities that are
Rmajette on DSK2VPTVN1PROD with PROPOSALS

made via a hardcopy that includes species, any act prohibited under conducted consistent with the water
personal identifying information, you section 9(a)(1) of the Act. Exercising this quality regulations contained in chapter
may request at the top of your document discretion, the Service developed 11.07 of the City of Georgetown Unified
that we withhold this information from general prohibitions (50 CFR 17.31) and Development Code (UDC 11.07)
public review. However, we cannot exceptions to those prohibitions (50 (https://udc.georgetown.org/) would not
guarantee that we will be able to do so. CFR 17.32) under the Act that apply to be prohibited under the Act. The water
We will post all hardcopy submissions most threatened wildlife species. quality regulations in UDC 11.07 were
on http://www.regulations.gov. Alternately, for other threatened finalized on February 24, 2015. Chapter

VerDate Sep<11>2014 15:12 Apr 08, 2015 Jkt 235001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1

19052 Federal Register / Vol. 80, No. 68 / Thursday, April 9, 2015 / Proposed Rules

11.07 of the UDC describes stream and variance to the spring and stream buffer please refer to the UDC Appendix A to
spring buffers, water quality best requirements, and exemptions to the Chapter 11.
management practices, and geologic spring and stream buffer requirements Section 11.07.008 of the UDC also
assessments that are required for of section 11.07.003. Small (less than 5 establishes an Adaptive Management
property development within the acres (2 hectares)) single-family and Working Group (Working Group) that is
Northern Edwards Aquifer Recharge two-family residential developments are responsible for reviewing data on a
Zone and the City of Georgetown. exempt from submitting a geologic regular basis and making
When a property owner submits a assessment; however, these recommendations for specific changes
development application for a regulated developments are required to in the management directions related to
activity on a tract of land located over implement UDC water quality measures. the voluntary conservation measures for
the Edwards Aquifer Recharge Zone, Property owners may request a variance occupied sites in Appendix A. Adaptive
that individual is required to submit a from the spring or stream buffer management of preservation of the
geologic assessment. The geologic requirements. For unoccupied habitat, Georgetown salamander is one of the
assessment identifies and describes all variances will be considered by the City duties tasked to the Working Group.
springs and streams on any subject of Georgetown’s Planning and Zoning Therefore, the guidelines described in
property, and the UDC establishes buffer Commission. Properties with a site Appendix A may change over time.
zones around identified springs and occupied by the Georgetown salamander Appendix A also indicates that the
streams. For springs, the buffer are exempt from the spring and stream Working Group is authorized to hear
encompasses 50 meters (164 feet) buffer requirements in chapter 11.07. and make recommendations to the
extending from the approximate center Rather, UDC Appendix A outlines Service regarding variances from the
of the spring outlet that is identified in voluntary conservation measures to be voluntary guidelines on a case-by-case
a geologic assessment. For streams, the implemented when undertaking basis and as long as the proposed
boundaries of the buffer must coincide regulated activities that occur on a tract variance will achieve the same level or
with either the boundaries of the of land with an occupied site, or within greater level of water quality benefits
Federal Emergency Management Agency 984 feet (300 meters) of an occupied and conservation objectives to the
1 percent floodplain or a calculated 1 site. Georgetown salamander. The Working
percent floodplain, whichever is Group will also develop an annual
For activities involving habitat
smaller. Thus, these stream buffers may report regarding the preservation of the
occupied by the Georgetown Georgetown salamander, continuous
vary depending on the size of the
stream, but they may be no smaller than salamander, we propose that take of the monitoring of the Georgetown
200 feet (61 meters) wide with at least Georgetown salamander that is salamander, assessment of research
75 feet (23 meters) from the centerline incidental to regulated activities that are priorities, and the effectiveness of the
of the stream. Section 11.07.003 of the conducted consistent with the voluntary water quality regulations and
UDC states that no ‘‘regulated activities’’ guidelines described in Appendix A of guidelines. Copies of the UDC 11.07 and
may be conducted within the spring and the UDC will not be prohibited under Appendix A are available at http://
stream buffers. ‘‘Regulated activities’’ the Act. Similar to chapter 11.07 of the www.regulations.gov at Docket No.
are defined in Title 30, Texas UDC, the guidelines in Appendix A FWS–R2–ES–2014–0008.
Administrative Code section 213.3(28) establish stream and spring buffers and
allowable activities within those buffers; Proposed Determination
as any construction-related or post-
construction activities on the Recharge however, the measures described in Section 4(d) of the Act states that ‘‘the
Zone of the Edwards Aquifer having the Appendix A create larger, more Secretary shall issue such regulations as
potential for polluting the Edwards protective buffers than those that appear [s]he deems necessary and advisable to
Aquifer and hydrologically connected in chapter 11 for unoccupied sites. First, provide for the conservation’’ of species
surface streams. More specific details on Appendix A establishes a ‘‘No- listed as threatened species.
spring and stream buffers can be found Disturbance Zone’’ in the stream or Conservation is defined in the Act to
in sections 11.07.003A. and B. of the waterway that a spring drains directly mean ‘‘to use and the use of all methods
UDC. into; this zone extends 264 feet (80 and procedures which are necessary to
In addition to the establishment of meters) upstream and downstream from bring any endangered species or
these spring and stream buffers, the the approximate center the spring outlet threatened species to the point at which
UDC outlines water quality best of an occupied site and is bounded by the measures provided pursuant to [the
management practices designed to the top of the bank. No regulated Act] are no longer necessary.’’
minimize sediment runoff, increase the activities may occur within the ‘‘No- The courts have recognized the extent
removal of total suspended solids, Disturbance Zone.’’ In addition, of the Secretary’s discretion under this
prevent an increase in flow rates, and Appendix A establishes a ‘‘Minimal- standard to develop rules that are
ensure spill containment for new or Disturbance Zone’’ for the subsurface appropriate for the conservation of a
expanded roadways. These regulations area that drains to the spring(s) at an species. For example, the Secretary may
in chapter 11.07 of the UDC are occupied site; this zone consists of the find that it is necessary and advisable
designed to reduce water quality area within 984 feet (300 meters) of the not to include a taking prohibition, or to
degradation that may occur as a result approximate center of the spring outlet include a limited taking prohibition. See
of development. By reducing further of an occupied site, except those areas Alsea Valley Alliance v. Lautenbacher,
water quality degradation that may within the ‘‘No-Disturbance Zone.’’ 2007 U.S. Dist. Lexis 60203 (D. Or.
Rmajette on DSK2VPTVN1PROD with PROPOSALS

result from development, these Most regulated activities are also 2007); Washington Environmental
protective measures are also expected to prohibited in the ‘‘Minimal-Disturbance Council v. National Marine Fisheries
minimize habitat degradation to the Zone,’’ but single-family developments; Service, and 2002 U.S. Dist. Lexis 5432
Georgetown salamander. limited parks and open space (W.D. Wash. 2002). In addition, as
The UDC also outlines exemptions development; and wastewater affirmed in State of Louisiana v. Verity,
from the requirement to prepare a infrastructure will be allowed. For 853 F.2d 322 (5th Cir. 1988), the rule
geologic assessment, the process by additional details on the buffers around need not address all the threats to the
which a landowner may request a occupied sites and prohibited actions, species. As noted by Congress when the

VerDate Sep<11>2014 15:12 Apr 08, 2015 Jkt 235001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1

Federal Register / Vol. 80, No. 68 / Thursday, April 9, 2015 / Proposed Rules 19053

Act was initially enacted, ‘‘once an conserving the natural resources in their 984 feet (300 meters) around cave or
animal is on the threatened list, the county, including water quality and the spring points; this area coincides with
Secretary has an almost infinite number Georgetown salamander (City of the size of the ‘‘Minimal-Disturbance’’
of options available to him with regard Georgetown Resolution No. 082812–N). Zones for occupied sites. By limiting
to the permitted activities for those Because impervious cover levels within development activities within these
species. [S]he may, for example, permit most of the springsheds known to be respective areas, the measures in the
taking, but not importation of such occupied by the Georgetown salamander UDC 11.07 and Appendix A are
species,’’ or she may choose to forbid are still relatively low, a window of expected to limit water quality
both taking and importation but allow opportunity exists to design and degradation in these areas that may
the transportation of such species, as implement measures to protect water provide suitable surface or subsurface
long as the prohibitions, and exceptions quality and, therefore, conserve the habitat for the Georgetown salamander
to those prohibitions, will ‘‘serve to salamander. The City and County’s regardless of occupancy. In addition,
conserve, protect, or restore the species approach for accomplishing this although the areas that provide recharge
concerned in accordance with the conservation goal includes both and the source water for specific areas
purposes of the Act’’ (H.R. Rep. No. 412, regulatory and non-regulatory actions, occupied by the salamander have not
93rd Cong., 1st Sess. 1973). as described below. Regulatory actions been precisely delineated, this
Section 9 prohibitions make it illegal include passage of the Edwards Aquifer watershed-level approach makes it
for any person subject to the jurisdiction Recharge Zone Water Quality Ordinance likely that these unknown recharge
of the United States to take (including (Ordinance No. 2013–59) by the areas are covered under the UDC. This
harass, harm, pursue, hunt, shoot, Georgetown City Council on December is because the UDC requires buffers
wound, kill, trap, capture, or collect; or 20, 2013, and the revisions to their UDC around all springs and streams where
attempt any of these), import or export, (chapter 11.07) finalized on February regulated activities are prohibited; thus,
ship in interstate commerce in the 24, 2015. Their approach also includes water quality impacts are expected to be
course of commercial activity, or sell or nonregulatory actions, such as the limited.
offer for sale in interstate or foreign technical guidance provided in This watershed-level approach also
commerce any wildlife species listed as Appendix A of the UDC, which outlines includes an adaptive management
an endangered species, without written additional conservation measures to component that will allow the Adaptive
authorization. It also is illegal under protect water quality and to avoid direct Management Working Group (Working
section 9(a)(1) of the Act to possess, sell, destruction of occupied sites. Group) to evaluate the response of
deliver, carry, transport, or ship any salamander populations to management
such wildlife that is taken illegally. Habitat modification, in the form of actions and quickly respond and
Prohibited actions consistent with degraded water quality and quantity and recommend adjustments, if necessary, to
section 9 of the Act are outlined for disturbance of spring sites, is the management strategies to protect water
threatened wildlife in 50 CFR 17.31(a) primary threat to the Georgetown quality consistent with conserving the
and (b). For the Georgetown salamander, salamander. The conservation measures Georgetown salamander. The UDC
the Service has determined that a 4(d) in both chapter 11.07 and Appendix A formalizes the Working Group with
rule tailored to its specific conservation of the UDC provide a variety of water representatives from the City of
needs is appropriate. This revised quality protection measures, such as the Georgetown, Williamson County, Texas
proposed 4(d) rule proposes that all creation of buffers around springs and Commission on Environmental Quality,
prohibitions in 50 CFR 17.31(a) and (b) streams where regulated activities are Texas Parks and Wildlife Department,
will apply to the Georgetown prohibited, designed to lessen impacts university scientists, private real estate
salamander, except as described below. to the water quality of springs and developers, and the U.S. Fish and
Under this revised proposed 4(d) rule, streams in the Edwards Aquifer Wildlife Service. The role of the
incidental take of the Georgetown Recharge Zone. Although the UDC Working Group is to:
salamander will not be considered a addresses water quality, regulating • Review scientific information to
violation of section 9 of the Act if the water quantity and groundwater understand the latest science on
take occurs on privately owned, State, withdrawal is outside the scope of the watershed management practices and
or County land and from regulated UDC. The UDC is applied throughout the conservation of the Georgetown
activities that are conducted consistent the watersheds that contain the salamander;
with the water quality protection Georgetown salamander. This • Recommend support for additional
measures contained in chapter 11.07 watershed-level approach works to Georgetown salamander scientific
and Appendix A of the City of avoid incremental environmental studies and oversee a long-term
Georgetown Unified Development Code. degradation that may go unnoticed on a monitoring program to ensure that
This revised proposed 4(d) rule refers to small, individual project scale. Through salamander abundance at monitored
the definition of ‘‘regulated activities’’ this revised proposed 4(d) rule, we locations are stable or improving;
in Title 30, Texas Administrative Code could achieve a greater level of • Conduct and evaluate water quality
section 213.3(28), which are any conservation for the Georgetown trend analysis as part of its long-term
construction related or post- salamander than we could without it monitoring program to ensure water
construction activities on the recharge because it encourages implementation quality conditions do not decline and,
zone of the Edwards Aquifer having the of the water quality protective measures in turn, result in impacts to salamander
potential for polluting the Edwards that are likely to limit habitat abundance; and
Rmajette on DSK2VPTVN1PROD with PROPOSALS

Aquifer and hydrologically connected degradation for Georgetown • Make recommendations for changes
surface streams. Our rationale for salamanders. The majority of to the UDC Appendix A for occupied
including this provision is explained in salamanders occur within 164 feet (50 sites if scientific and monitoring
the paragraphs that follow. meters) of a spring outlet; this coincides information indicates that water quality
The local community in the City of with the spring and stream buffers for and salamander protection measures
Georgetown and Williamson County has unoccupied sites. We also believe the need changes to minimize impacts to
expressed a desire to design and salamander populations exist through salamander populations and to attain
implement a local solution to underground conduits that may extend the goal of species conservation.

VerDate Sep<11>2014 15:12 Apr 08, 2015 Jkt 235001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1

19054 Federal Register / Vol. 80, No. 68 / Thursday, April 9, 2015 / Proposed Rules

While a window of opportunity exists proposed rule can implement their appropriate and independent specialists
to design and implement conservation projects without any potential delay regarding this revised proposed rule. We
measures to conserve the Georgetown from seeking incidental take coverage will send peer reviewers copies of this
salamander, human population levels from the Service, while also minimizing revised proposed rule immediately
and development are expected to water quality degradation; this simple following publication in the Federal
increase rapidly in Williamson County approach makes streamlined Register. We will invite these peer
(Texas State Data Center 2012, pp. 166– compliance more enticing for project reviewers to comment, during the
167). Therefore, the success of the local proponents and is likely to result in reopening of the public comment
community’s efforts will depend on this increased implementation of water period, on our use and interpretation of
robust adaptive management program quality protective measures that benefit the science used in developing our
designed to monitor and quickly assess salamanders than would occur revised proposed 4(d) rule.
the effectiveness of the identified otherwise.
Based on the rationale explained Required Determinations
conservation measures and strategies in
attaining the goal of species’ above, the provisions included in this Regulatory Planning and Review
conservation, and to respond quickly revised proposed 4(d) rule are necessary (Executive Orders 12866 and 13563)
and adapt the measures and strategies as and advisable to provide for the
conservation of the Georgetown Executive Order 12866 provides that
needed to attain the goal. The adaptive the Office of Information and Regulatory
management approach will ensure that salamander. If an activity that may affect
the species is not regulated by UDC Affairs (OIRA) in the Office of
the water quality protective measures Management and Budget will review all
are serving their intended purpose of 11.07 or is not in accordance with the
UDC 11.07 and Appendix A, or a person significant rules. OIRA has determined
conserving the Georgetown salamander, that this rule is not significant.
thereby providing for the conservation or entity is not in compliance with all
terms and conditions of the UDC 11.07 Executive Order 13563 reaffirms the
of the species. Adaptive management principles of E.O. 12866 while calling
measures related to UDC 11.07 and and Appendix A, and the activity would
result in an act that would be otherwise for improvements in the nation’s
Appendix A that are agreed upon by the regulatory system to promote
Working Group and consistent with the prohibited under 50 CFR 17.31, then
provisions of 50 CFR 17.31 and 17.32 predictability, to reduce uncertainty,
goal of preserving the Georgetown and to use the best, most innovative,
salamander would be covered under for threatened species will apply. In
such circumstances, the prohibitions of and least burdensome tools for
this revised proposed 4(d) rule. achieving regulatory ends. The
50 CFR 17.31 would be in effect, and
By not prohibiting incidental take executive order directs agencies to
authorization under 50 CFR 17.32
resulting from regulated activities consider regulatory approaches that
would be required.
conducted in accordance with the UDC In addition, nothing in this revised reduce burdens and maintain flexibility
11.07 and Appendix A, the Service is proposed 4(d) rule affects in any way and freedom of choice for the public
supporting and encouraging a local other provisions of the Act such as the where these approaches are relevant,
solution to conservation of the designation of critical habitat under feasible, and consistent with regulatory
Georgetown salamander. This revised section 4, recovery planning provisions objectives. E.O. 13563 emphasizes
proposed 4(d) rule would provide the of section 4(f), and consultation further that regulations must be based
Service the opportunity to work requirements under section 7. on the best available science and that
cooperatively, in partnership with the the rulemaking process must allow for
local community and State agencies, on Draft Environmental Assessment public participation and an open
conservation of the Georgetown The Service is conducting a National exchange of ideas. We have developed
salamander and the ecosystems on Environment Policy Act (NEPA; 42 this revised proposed 4(d) rule in a
which it depends. Leveraging our U.S.C. 4321 et seq.) analysis and has manner consistent with these
conservation capacity with that of the prepared a draft environmental requirements.
State, local governments, and the assessment (EA) to address potential
conservation community at large may Regulatory Flexibility Act
impacts of this revised proposed 4(d)
make it possible to attain biological rule. The NEPA analysis accomplishes Under the Regulatory Flexibility Act
outcomes larger than those we could three goals: (1) Determine if any action, (RFA; 5 U.S.C. 601 et seq., as amended
attain ourselves due to the watershed- or the absence of action, will have by the Small Business Regulatory
scale protection the UDC requires. significant environmental impacts; (2) Enforcement Fairness Act (SBREFA) of
Further, these local partners are better identify any unavoidable adverse 1996)), whenever an agency must
able to design solutions that minimize effects; and (3) provide a basis for a publish a notice of rulemaking for any
socioeconomic impacts, thereby decision on a proposal. The draft EA proposed or final rule, it must prepare
encouraging participation in measures and this revised proposed 4(d) rule are and make available for public comment
that will protect water quality and being made available concurrently; both a regulatory flexibility analysis that
conserve the Georgetown salamander. In are available for a 30-day period for describes the effects of the rule on small
addition, by not prohibiting incidental public review and comment (see the entities (small businesses, small
take resulting from regulated activities DATES and ADDRESSES sections, above). organizations, and small government
conducted in accordance with UDC The Service will analyze and consider jurisdictions). However, no regulatory
11.07 and Appendix A, the Service is all substantive comments we receive on flexibility analysis is required if the
Rmajette on DSK2VPTVN1PROD with PROPOSALS

providing a streamlining mechanism for both the draft EA and revised proposed head of the agency certifies the rule will
compliance with the Act for those 4(d) rule before issuing a final 4(d) rule. not have a significant economic impact
project proponents who comply with on a substantial number of small
the protective measures in the UDC Peer Review entities. SBREFA amended the RFA to
11.07 and Appendix A and, thus, would In accordance with our joint policy require Federal agencies to provide a
be covered by this revised 4(d) rule. published in the Federal Register on statement of the factual basis for
Developers who comply with these July 1, 1994 (59 FR 34270), we will seek certifying that the rule will not have a
protective measures outlined in this the expert opinions of at least three significant economic impact on a

VerDate Sep<11>2014 15:12 Apr 08, 2015 Jkt 235001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\09APP1.SGM 09APP1

Document Created: 2015-12-18 11:23:35
Document Modified: 2015-12-18 11:23:35

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Revised proposed rule.
Dates		We will consider comments received or postmarked on or before May 11, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see Public Comments, below) must be received by 11:59 p.m. Eastern Time on the closing date.
Contact		Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Rd, Suite 200, Austin, TX 78758; telephone 512-490-0057; facsimile 512-490-0974. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
FR Citation		80 FR 19050
RIN Number		1018-BA32
CFR Associated		Endangered and Threatened Species; Exports; Imports; Reporting and Recordkeeping Requirements and Transportation

80 FR 19050 - Endangered and Threatened Wildlife and Plants; 4(d) Rule for the Georgetown Salamander

DEPARTMENT OF THE INTERIORFish and Wildlife Service

Federal Register Volume 80, Issue 68 (April 9, 2015)

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service