80 FR 47418 - 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 152 (August 7, 2015)
Fish and Wildlife Service
Federal Register Volume 80, Issue 152 (August 7, 2015)
| Page Range | 47418-47428 | |
| FR Document | 2015-19335 |
[Federal Register Volume 80, Number 152 (Friday, August 7, 2015)] [Rules and Regulations] [Pages 47418-47428] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-19335] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2014-0008; 4500030113] RIN 1018-BA32 Endangered and Threatened Wildlife and Plants; 4(d) Rule for the Georgetown Salamander AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: We, the U.S. Fish and Wildlife Service, finalize a rule under authority of section 4(d) of the Endangered Species Act of 1973, as amended, that provides measures that are necessary and advisable to provide for the conservation of the Georgetown salamander (Eurycea naufragia), a species that occurs in Texas. This final 4(d) rule will provide the Service the opportunity to work cooperatively, in partnership with the local community and State agencies, on conservation of the Georgetown salamander and the ecosystems on which it depends. This 4(d) rule is necessary and advisable to provide for the conservation of the Georgetown salamander because it strengthens water quality protection measures throughout the species' range, allows for consideration of new information to optimize conservation measures, and furthers conservation partnerships that can be leveraged to improve the status of the Georgetown salamander. DATES: This rule is effective September 8, 2015. ADDRESSES: This final rule, the final environmental assessment, and a list of references cited are available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2014-0008, or by mail from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Comments and materials we received are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Services Field Office, 10711 Burnet Rd., Suite 200, Austin, TX 78758; telephone 512-490-0057; facsimile 512-490-0974. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Previous Federal Actions On August 22, 2012, we published a proposed rule in the Federal Register (77 FR 50768) to list the Georgetown salamander (Eurycea naufragia), Salado salamander (Eurycea chisholmensis), Jollyville Plateau salamander (Eurycea [[Page 47419]] tonkawae), and Austin blind salamander (Eurycea waterlooensis) as endangered species and to designate critical habitat for these species under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1533 et seq.). The Federal lists of endangered and threatened species and other protective regulations for listed species under the Act are in part 17 of title 50 of the Code of Federal Regulations (CFR). On February 24, 2014, we published a final determination to list the Georgetown salamander and the Salado salamander as threatened species under the Act (79 FR 10236) and a proposed rule under section 4(d) of the Act (a proposed 4(d) rule) for the Georgetown salamander (79 FR 10077) at 50 CFR 17.43. On April 9, 2015, we revised the proposed 4(d) rule for the Georgetown salamander and reopened the public comment period for 30 days, ending May 11, 2015 (80 FR 19050). Please see the final listing determination (79 FR 10236) for additional information concerning previous Federal actions for the Georgetown salamander. Background The Georgetown salamander is entirely aquatic and depends on water from the Edwards Aquifer in sufficient quantity and quality to meet the species' life-history requirements for survival, growth, and reproduction. Degradation of habitat, in the form of reduced water quality and quantity and disturbance of spring sites, is the main threat to this species. For more information on the Georgetown salamander and its habitat, please refer to the February 24, 2014, final listing determination (79 FR 10236). The Act does not specify particular prohibitions, or exceptions to those prohibitions, for threatened species. Instead, under section 4(d) of the Act, the Secretary of the Interior has the discretion to issue such regulations as she deems necessary and advisable to provide for the conservation of such species. The Secretary also has the discretion to prohibit by regulation, with respect to any threatened wildlife species, any act prohibited under section 9(a)(1) of the Act. Exercising this discretion, the Service developed general prohibitions (50 CFR 17.31) and exceptions to those prohibitions (50 CFR 17.32) under the Act that apply to most threatened wildlife species. Alternately, for other threatened species, under the authority of section 4(d) of the Act, the Service may develop specific prohibitions and exceptions that are tailored to the specific conservation needs of the species. In such cases, some of the prohibitions and authorizations under 50 CFR 17.31 and 17.32 may be appropriate for the species and incorporated into a rule under section 4(d) of the Act. However, these rules, known as 4(d) rules, will also include provisions that are tailored to the specific conservation needs of the threatened species and may be more or less restrictive than the general provisions at 50 CFR 17.31. Summary of Changes From the Revised Proposed Rule Based on information we received in both public comment periods on the proposed 4(d) rule (see Summary of Comments and Recommendations), we revised the provisions of the 4(d) rule to provide greater clarity around the activities that are covered and not covered by this rule. Provisions of the 4(d) Rule for the Georgetown Salamander Under section 4(d) of the Act, the Secretary may publish a rule that modifies the standard protections for threatened species and that contains prohibitions tailored to the conservation of the species and that are determined to be necessary and advisable. Under this 4(d) rule, the Service provides that all of the prohibitions under 50 CFR 17.31 and 17.32 are necessary and advisable and, therefore, apply to the Georgetown salamander, except as noted below. This 4(d) rule will not remove or alter in any way the consultation requirements under section 7 of the Act. City of Georgetown Unified Development Code (UDC) For activities outside of habitat occupied by the Georgetown salamander, the final 4(d) rule provides that take of Georgetown salamanders that is incidental to regulated activities (as defined in title 30, Texas Administrative Code, section 213.3(28)) that are conducted consistent with the water quality regulations contained in chapter 11.07 of the City of Georgetown Unified Development Code (UDC 11.07) (https://udc.georgetown.org/) will not be prohibited under the Act. The water quality regulations in UDC 11.07 were finalized on February 24, 2015. Chapter 11.07 of the UDC describes stream and spring buffers, water quality best management practices, and geologic assessments that are required for property development within the Northern Edwards Aquifer Recharge Zone and the City of Georgetown. ``Regulated activities'' are defined in title 30, Texas Administrative Code, section 213.3(28) as any construction-related or post-construction activities on the Recharge Zone of the Edwards Aquifer having the potential for polluting the Edwards Aquifer and hydrologically connected surface streams. ``Regulated activities'' do not include the clearing of vegetation without soil disturbance, agricultural activities, oil and gas activities, routine maintenance of existing structures that does not involve additional site disturbance, and construction of single-family residences on lots larger than 2 hectares (ha) (5 acres (ac)). More specific details on spring and stream buffers can be found in sections 11.07.003A. and B. of the UDC. When a property owner submits a development application for a regulated activity on a tract of land located over the Edwards Aquifer Recharge Zone, that individual is required to submit a geologic assessment to the City of Georgetown. The geologic assessment identifies and describes all springs and streams on any subject property, and the UDC establishes buffer zones around identified springs and streams. For springs, the buffer encompasses 50 meters (m) (164 feet (ft)) extending from the approximate center of the spring outlet that is identified in a geologic assessment. For streams, the boundaries of the buffer must coincide with either the boundaries of the Federal Emergency Management Agency (FEMA) one percent floodplain or a calculated one percent floodplain, whichever is smaller. In the absence of a FEMA floodplain or calculated one percent floodplain, these stream buffers may be no smaller than 61 m (200 ft) wide with at least 23 m (75 ft) from the centerline of the stream. Section 11.07.003 of the UDC states that no ``regulated activities'' may be conducted within the spring and stream buffers. In addition to the establishment of these spring and stream buffers, the UDC outlines water quality best management practices designed to minimize sediment runoff, increase the removal of total suspended solids, prevent an increase in flow rates, and ensure spill containment for new or expanded roadways. These regulations in chapter 11.07 of the UDC are designed to reduce water quality degradation that may occur as a result of development. By reducing further water quality degradation that may result from development, these protective measures are also expected to reduce degradation to Georgetown salamander habitat that may occur. The UDC 11.07 also outlines exemptions from the requirement to prepare a geologic assessment, the process by which a landowner may request a variance to the spring and [[Page 47420]] stream buffer requirements, and exemptions to the spring and stream buffer requirements of section 11.07.003. Small (less than 2-ha (5-ac)) single-family and two-family residential developments are exempt from submitting a geologic assessment; however, these developments are required to implement UDC water quality measures. Landowners may request to the City of Georgetown a variance from the spring and stream buffer requirements in UDC 11.07 if: The variance is not contrary to the public interest; due to special conditions, a literal enforcement of the ordinance would result in unnecessary hardship; and the spirit of the ordinance is observed and substantial justice is done, in accordance with UDC section 2.05.010.A.6. These variances and exemptions apply only to sites not occupied by Georgetown salamanders. Properties with a site occupied by the Georgetown salamander are exempt from the spring and stream buffer requirements in chapter 11.07. Rather, UDC Appendix A outlines conservation measures (which are voluntary under the UDC) to be implemented when undertaking regulated activities that occur on a tract of land with an occupied site or within 984 ft (300 m) of an occupied site. An ``occupied site'' is defined in the UDC as any spring identified as a critical habitat unit by the Service for the Georgetown salamander and includes the following sites: Cobb Well, Cobb Springs, Cowen Creek Spring, Bat Well Cave, Walnut Spring, Twin Spring, Hogg Hollow Spring, Cedar Hollow Spring, Knight (Crockett Garden) Spring, Cedar Breaks Hiking Trail Spring, Water Tank Cave, Avant's (Capitol Aggregates), Buford Hollow Springs, Swinbank Spring, Shadow Canyon, San Gabriel Spring, and Garey Ranch Springs. For the purposes of this 4(d) rule, however, we define an occupied site to be any site where Georgetown salamanders have been found in the past or new sites found in the future. For activities involving habitat occupied by the Georgetown salamander, the final 4(d) rule provides that take of the Georgetown salamander that is incidental to regulated activities that are conducted consistent with the guidelines described in Appendix A of the UDC will not be prohibited under the Act. Similar to chapter 11.07 of the UDC, the guidelines in Appendix A establish stream and spring buffers and allowable activities within those buffers; however, the measures described in Appendix A create larger, more protective buffers than those that appear in chapter 11 for unoccupied sites. First, Appendix A establishes a ``No-Disturbance Zone'' in the stream or waterway into which a spring drains directly; this zone extends 80 m (264 ft) upstream and downstream from the approximate center of the spring outlet of an occupied site and is bounded by the top of the bank. No regulated activities may occur within the ``No-Disturbance Zone.'' In addition, Appendix A establishes a ``Minimal-Disturbance Zone'' for the subsurface area that drains to the spring(s) at an occupied site; this zone consists of the area within 300 m (984 ft) of the approximate center of the spring outlet of an occupied site, except those areas within the ``No-Disturbance Zone.'' Most regulated activities are also prohibited in the ``Minimal-Disturbance Zone,'' but single-family developments, limited parks and open space development, and wastewater infrastructure will be allowed. For additional details on the buffers around occupied sites and prohibited actions, please refer to the UDC Appendix A. In general, this 4(d) rule does not apply to deviations from the water quality measures in UDC 11.07 and Appendix A. Any variance from the measures and guidelines described in UDC 11.07 (non-occupied sites) is not covered by this final 4(d) rule, unless that variance has been granted by the City of Georgetown. In addition, variances from the spring and stream buffer requirements of UDC 11.07 may be granted by the City of Georgetown only if the variance is not contrary to the public interest, if due to special conditions a literal enforcement of the ordinance would result in unnecessary hardship, and if the spirit of the ordinance is observed and substantial justice is done, in accordance with UDC section 2.05.010.A.6. Projects involving habitat occupied by the Georgetown salamander (which are not eligible for variances) where the project proponent chooses not to follow the voluntary guidelines in Appendix A of the UDC, may work with the Service to pursue take coverage by developing a habitat conservation plan (HCP) in accordance with section 10 of the Act. Section 11.07.008 of the UDC also establishes an Adaptive Management Working Group (Working Group) that is responsible for reviewing data on a regular basis and making recommendations for specific changes in the management directions related to the voluntary conservation measures for occupied sites in Appendix A. Adaptive management for preservation of the Georgetown salamander is one of the duties tasked to the Working Group. The adaptive management described in the UDC specifically applies to the guidelines (i.e., conservation measures) found in Appendix A; therefore, the guidelines described in Appendix A may change over time if they would result in equal or better conservation benefits to the Georgetown salamander, as determined by the Service. For example, if experience gained during implementation of the guidelines or new scientific information suggests that a buffer distance was either too small, or larger than needed, to achieve the intended benefits, that buffer distance could be modified. However, the activities covered under Appendix A (i.e., regulated activities) are not subject to change under the adaptive management provisions described in the UDC. In other words, exercising of adaptive management under this 4(d) rule cannot expand the scope of the covered activities beyond regulated activities (as defined in title 30, Texas Administrative Code, section 213.3(28)). The Working Group will develop an annual report regarding the preservation of the Georgetown salamander, continuous monitoring of the Georgetown salamander, assessment of research priorities, and the effectiveness of the water quality regulations and guidelines. Copies of the February 24, 2015, dated UDC 11.07 and Appendix A are available at http://www.regulations.gov at Docket No. FWS-R2-ES-2014-0008. Any revisions to Appendix A will be made available at https://udc.georgetown.org/udc-amendments/. Determination Section 4(d) of the Act states that ``the Secretary shall issue such regulations as [s]he deems necessary and advisable to provide for the conservation'' of species listed as threatened species. Conservation is defined in the Act to mean ``to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary.'' The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, the Secretary may find that it is necessary and advisable not to include a taking prohibition, or to include a limited taking prohibition. See Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, and 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in State of Louisiana v. Verity, [[Page 47421]] 853 F.2d 322 (5th Cir. 1988), the rule need not address all the threats to the species. As noted by Congress when the Act was initially enacted, ``once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him [her] with regard to the permitted activities for those species. [S]he may, for example, permit taking, but not importation of such species,'' or she may choose to forbid both taking and importation but allow the transportation of such species, as long as the prohibitions, and exceptions to those prohibitions, will ``serve to conserve, protect, or restore the species concerned in accordance with the purposes of the Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). Section 9 prohibitions make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt any of these), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as an endangered species, without written authorization. It also is illegal under section 9(a)(1) of the Act to possess, sell, deliver, carry, transport, or ship any such wildlife that is taken illegally. Prohibited actions consistent with section 9 of the Act are outlined for threatened wildlife in 50 CFR 17.31(a) and (b). For the Georgetown salamander, the Service has determined that a 4(d) rule tailored to its specific conservation needs is necessary and advisable, as discussed below. This final 4(d) rule provides that all prohibitions in 50 CFR 17.31(a) and (b) will apply to the Georgetown salamander, except as described below. Under this final 4(d) rule, incidental take of the Georgetown salamander will not be considered a violation of section 9 of the Act if the take occurs on any non-Federal land and from regulated activities that are conducted consistent with the water quality protection measures contained in chapter 11.07 and Appendix A of the City of Georgetown Unified Development Code. This final 4(d) rule refers to the definition of ``regulated activities'' in title 30, Texas Administrative Code, section 213.3(28), which is any construction- related or post-construction activities on the recharge zone of the Edwards Aquifer having the potential for polluting the Edwards Aquifer and hydrologically connected surface streams. We have determined that this provision is necessary and advisable for the conservation of the Georgetown salamander, as explained in the paragraphs that follow. The local community in the City of Georgetown and Williamson County has expressed a desire to design and implement a local solution to conserving the natural resources in their county, including water quality and the Georgetown salamander (City of Georgetown Resolution No. 082812-N). All currently known locations for the Georgetown salamander are within the jurisdiction of the City of Georgetown, making the city an appropriate entity to manage conservation measures that protect Georgetown salamander habitat. Because impervious cover levels within most of the watersheds known to be occupied by the Georgetown salamander are still relatively low, a window of opportunity exists to design and implement measures to protect water quality and, therefore, conserve the salamander. The City and County's approach for accomplishing this conservation goal includes regulatory and non- regulatory actions, as described below. Regulatory actions include passage of the Edwards Aquifer Recharge Zone Water Quality Ordinance (Ordinance No. 2013-59) by the Georgetown City Council on December 20, 2013, and the revisions to their UDC (chapter 11.07) finalized on February 24, 2015. Their approach also includes non-regulatory actions, such as the technical guidance provided in Appendix A of the UDC, which outlines additional conservation measures to protect water quality and to avoid direct destruction of occupied sites. Habitat modification, in the form of degraded water quality and quantity and disturbance of spring sites, is the primary threat to the Georgetown salamander. The conservation measures in both chapter 11.07 and Appendix A of the UDC provide a variety of water quality protection measures, such as the creation of buffers around springs and streams where regulated activities are prohibited, designed to lessen impacts to the water quality of springs and streams in the Edwards Aquifer Recharge Zone. The UDC is applied throughout the watersheds that contain the Georgetown salamander. Absent this 4(d) rule, the status quo would be to address development impacts through traditional tools (that is, sections 7 and 10 of the Act) that are generally applied at the project-by-project scale. The watershed-level approach in UDC 11.07 and Appendix A works to avoid incremental environmental degradation that may go unnoticed on a small, individual project scale. Through this final 4(d) rule, we can achieve a greater level of conservation for the Georgetown salamander than we could without it because it encourages rangewide implementation of water quality protective measures that are aimed at addressing the primary threat of habitat modification and degradation for Georgetown salamanders. The majority of Georgetown salamanders occur within 164 ft (50 m) of a spring outlet (Pierce et al. 2010, p. 294; TPWD 2011, p. 3); this coincides with the spring and stream buffers for unoccupied sites. We also believe the salamander populations exist through underground conduits that may extend 300 m (984 ft) around cave or spring points; this area coincides with the size of the ``Minimal-Disturbance Zones'' for occupied sites. By limiting development activities within these respective areas, the measures in the UDC 11.07 and Appendix A are expected to limit water quality degradation in areas that may provide suitable surface or subsurface habitat for the Georgetown salamander now and in the future. Although the areas that provide recharge and the source water for specific areas occupied by the salamander have not been precisely delineated, the watershed-level approach makes it likely that unknown recharge areas are receiving water quality protection under the UDC. This is because the UDC prohibits regulated activities within buffers around all streams located within the recharge zone and the City of Georgetown jurisdiction. In karst aquifer systems, streams often contain important recharge features called swallow holes or swallets, which allow the stream to continue flowing underground in a conduit and feed the larger aquifer or even small springs directly (White 1998, p. 172). For example, in the Barton Springs Segment of the Edwards Aquifer, hydrologists generally agree that most of the aquifer's recharge comes via these streambed recharge features (Mahler et al. 2011, p. 4). Although similar research is lacking in the Northern Segment of the Edwards Aquifer, it is likely that the aquifer feeding Georgetown salamander habitat works in a similar way because both areas are karst aquifer systems, thereby making the stream buffers of the UDC crucial in protecting groundwater quality. This watershed-level approach also includes an adaptive management component that will allow the Adaptive Management Working Group (Working Group) to evaluate the response of salamander populations to management actions and quickly respond and recommend adjustments, if necessary, to management strategies to protect water [[Page 47422]] quality consistent with conserving the Georgetown salamander. The UDC formalizes the Working Group with representatives from the City of Georgetown, Williamson County, Texas Commission on Environmental Quality, Texas Parks and Wildlife Department, university scientists, private real estate developers, and the Service. The role of the Working Group is to:Review scientific information to understand the latest science on watershed management practices and the conservation of the Georgetown salamander; Recommend support for additional Georgetown salamander scientific studies and oversee a long-term monitoring program to ensure that salamander abundance at monitored locations is stable or improving; Conduct and evaluate water quality trend analysis as part of its long-term monitoring program to ensure water quality conditions do not decline and, in turn, result in impacts to salamander abundance; and Develop recommendations for changes to the UDC Appendix A for occupied sites if scientific and monitoring information indicates that water quality and salamander protection measures need changes to minimize impacts to salamander populations and to help attain the goal of species conservation. While a window of opportunity exists to design and implement conservation measures to conserve the Georgetown salamander, human population levels and development are expected to increase rapidly in Williamson County (Texas State Data Center 2012, pp. 166-167). The success of the local community's efforts depends on their robust adaptive management program. The program is designed to monitor and quickly assess the effectiveness of the identified conservation measures and strategies and to be able to respond quickly and adapt the conservation measures and strategies to provide equal or better conservation benefits to the Georgetown salamander. The adaptive management approach will ensure that the water quality protective measures are serving their intended purpose of conserving the Georgetown salamander, thereby providing for the conservation of the species. Changes to UDC Appendix A that are agreed upon by the Working Group through the adaptive management process, provide equal or greater conservation benefits to the Georgetown salamander, and approved by the Service would be covered under this 4(d) rule. By not prohibiting incidental take resulting from regulated activities conducted in accordance with the UDC 11.07 and Appendix A, the Service is supporting and encouraging a local solution to conservation of the Georgetown salamander. This final 4(d) rule will provide the Service the opportunity to work cooperatively, in partnership with the local community and State agencies, on conservation of the Georgetown salamander and the ecosystems on which it depends. Leveraging our conservation capacity with that of the State, local governments, and the conservation community at large may make it possible to attain biological outcomes larger than those we could attain ourselves due to the watershed-scale protection the UDC requires. Further, our local partners are best able to design solutions that minimize socioeconomic impacts, thereby encouraging participation in measures that will protect water quality and conserve the Georgetown salamander. In addition, by not prohibiting incidental take resulting from regulated activities conducted in accordance with UDC 11.07 and Appendix A, the Service is providing a streamlining mechanism for compliance with the Act for those project proponents who comply with the protective measures in UDC 11.07 and Appendix A and, thus, are considered covered by this final 4(d) rule. Project proponents who comply with these protective measures, as outlined in this final rule, can implement their projects without any potential delay from seeking incidental take coverage from the Service, while also minimizing water quality degradation. This approach provides greater regulatory certainty and streamlines compliance for project proponents and thus is likely to result in increased implementation of water quality protective measures that benefit salamanders. In summary, this 4(d) rule is necessary and advisable to provide for the conservation of the Georgetown salamander because it strengthens water quality protection measures throughout the species' range, allows for consideration of new information to optimize conservation measures, and furthers conservation partnerships that can be leveraged to improve the status of the Georgetown salamander. Implementation of water quality protection measures throughout the range of the species will provide greater protection for the species than would project-by-project efforts, and provide protections to recharge areas that we may not be able to protect under our traditional tools (e.g., sections 7 and 10 of the Act). Further, water quality protection is a crucial element of conservation for the Georgetown salamander. Because the best available information does not allow us to determine the exact amount of water quality protection needed to satisfy the life requirements of the Georgetown salamander, the adaptive management approach incorporated into UDC Appendix A provides a pathway to achieving our conservation goals for the species in the face of scientific uncertainty. Finally, this approach also encourages further cooperation between the Service and local government entities, enhancing our ability to work collaboratively with partners to further Georgetown salamander conservation. If an activity that may affect the species is not regulated by UDC 11.07 or is not in accordance with UDC 11.07 and Appendix A, or a person or entity is not in compliance with all terms and conditions of UDC 11.07 and Appendix A and the activity would result in an act that would be otherwise prohibited under 50 CFR 17.31, then the general provisions of 50 CFR 17.31 and 17.32 for threatened species apply. In such circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and authorization under 50 CFR 17.32 would be required. In addition, nothing in this 4(d) rule affects in any way other provisions of the Act, such as the designation of critical habitat under section 4, recovery planning provisions of section 4(f), and consultation requirements under section 7. Summary of Comments and Recommendations We requested written comments from the public on the proposed 4(d) rule for the Georgetown salamander during two comment periods: February 24 to April 25, 2014, and April 9 to May 11, 2015. We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed 4(d) rule, draft environmental assessment, and chapter 11.07 and Appendix A of the UDC during the respective comment periods. Over the course of the two comment periods, we received 39 comment submissions. All substantive information provided during these comment periods has either been incorporated directly into this final rule or is addressed below. Comments from peer reviewers and State agencies are grouped separately. Peer Review Comments In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion [[Page 47423]] from five knowledgeable individuals with scientific expertise that are familiar with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from two of the five peer reviewers. We reviewed all comments received from the peer reviewers for substantive issues and new information. These comments are addressed in the following summary and incorporated into the final rule as appropriate. (1) Comment: An additional buffer specifically associated with where Georgetown salamanders are found, to minimize direct impacts by people (and domestic pets), is critical. Fencing is often an effective way to mark the boundaries (and potentially reduce their footprint) of such a protective buffer. Our response: We agree that additional measures to protect Georgetown salamanders from the threat of trampling by people, pets, feral hogs, and livestock may contribute to the conservation of the species. However, as noted above, this 4(d) rule does not provide incidental take authority for all types of activities that may constitute take or harm of Georgetown salamanders. Rather, the 4(d) rule will promote the conservation of the species by helping to alleviate negative impacts that can occur from the threat of water quality degradation as a result of urbanization. (2) Comment: I am uncertain as to whether the fixed-width buffers are appropriate in all localities to achieve the desired level of protection. Protection of surface and groundwater resources in karstified area can be quite challenging, and, therefore, simplified metrics such as horizontal setbacks may not achieve the desired results. Adequate buffers would require an understanding of both the detailed hydrogeology and the dispersal patterns of the listed species. For the former, I would expect that areas upgradient of springs (a more immediate source of recharge) would be more important than downgradient areas, all else being equal, to the maintenance of adequate springflow. For the latter, I would expect that downgradient areas (where the emergent surface water flows) would be more important than upgradient areas for the direct support of habitat. How these two attributes interact to define a truly ``critical'' area of influence is undoubtedly complex, and a fixed-width buffer may be the best alternative at the present time. However, I would hope that improved understanding of these interactions would be a focus of the adaptive management effort. Our response: We agree and expect that improving the understanding of the detailed hydrogeology and dispersal patterns of the species will be a focus of the Working Group. Please see our response to Comment #8. (3) Comment: The stormwater-management requirements for protection of the Edwards Aquifer (UDC) are laudable, but they lag behind the current understanding, and readily available applications, of what constitutes stormwater ``best management practices'' of the 21st century. Particularly given the importance of maintaining aquifer recharge, I would expect to see on-site retention of the 95th percentile storm (as is already mandated for federal facilities) rather than just 85 percent reduction in total suspended solids. Our response: Because the on-site retention of the 95th percentile storm is a different type of stormwater measurement than 85 percent reduction in total suspended solids, it is difficult to compare the two in terms of water quality protection. However, we recognize that there may be more stringent water quality regulations that aim to remove more contaminants from stormwater runoff than the UDC. The adaptive management process will monitor the status of the species in response to implementation of the UDC and modify the regulations if more protective measures are needed to further reduce impacts to the species. At this time, we have determined that the UDC and Appendix A, which include the 85 percent reduction, are necessary and advisable for the conservation of the species (see Determination section above). (4) Comment: I recommend that there should be no exemptions to the water quality regulations. Every proposed change in land use should have some form of review to ensure compatibility with management goals. Our response: In general, deviations from the water quality regulations described in UDC 11.07 and the voluntary guidelines described in Appendix A of the UDC will not be covered under this 4(d) rule. Non-regulated activities, for example, are exempt from UDC 11.07 and are, therefore, not covered under this 4(d) rule. However, variances from UDC 11.07 may be granted by the City of Georgetown in special circumstances. These variances from the spring and stream buffer requirements apply only to non-occupied sites and undergo review by the City of Georgetown staff and may be granted only if the variance is not contrary to the public interest, due to special conditions a literal enforcement of this regulation would result in unnecessary hardship, and the spirit of the regulation is observed and substantial justice is done, in accordance with UDC Section 2.05.010.A.6. No variances to Appendix A, which covers all occupied sites, of the UDC will be covered under this 4(d) rule. Individual variances to UDC 11.07 that have been approved by the City of Georgetown can be tracked by the Working Group and incorporated into their discussions and recommendations on the adaptive management needed to attain conservation goals. (5) Comment: Geologic and soil studies should be performed by the community to delineate locations where shallow soil cover prevents conventional onsite wastewater disposal. Green infrastructure and low- impact development should be required everywhere in Georgetown, Texas. This includes new development, redevelopment, and restoration projects. Our response: We agree that groundwater vulnerability studies and low-impact development will be beneficial for the Georgetown salamander and its habitat. These are helpful suggestions for the Working Group to consider as they evaluate the effectiveness of the UDC conservation measures. (6) Comment: The community should track water quality and flow at selected springs and streams in order to develop long-term databases able to detect changes. Our response: We agree that water quality and quantity monitoring conducted in a manner that is able to detect changes needs to be a priority for the Working Group. Williamson County is currently monitoring salamander abundance and basic water chemistry (for example, temperature, dissolved oxygen, and specific conductance) at three sites with plans to add more monitoring sites in the future. Comments From States (7) Comment: We urge the Service to finalize and implement this proposed rule as efficiently as possible while following a transparent process in order to provide regulatory certainty. Our response: By requesting input from the public on this 4(d) rule during two public comment periods, one 60-day and a second 30-day, we believe the rulemaking process has been transparent. (8) Comment: Spring buffers and other water quality protection policies should be aligned with the hydrogeology that most directly influences conditions for the species' survival. It also appears that the current buffer strategy may unduly [[Page 47424]] restrict landowners in some areas that do not influence survival conditions for the species while potentially not affording protection to other areas that do influence survival conditions. We believe the proposed rule affords the [Adaptive Management] Working Group the latitude to study these spring buffers and offer alternative recommendations if new science dictates that changes should be made. Our response: The specific hydrogeology (for example, recharge area) for each site occupied by the Georgetown salamander has not been determined. The Act requires that we use the best available information and does not require that we conduct research to develop new science. In the absence of this information, we believe a fixed-width buffer is the best alternative for protecting these sites. As new information is discovered, the conservation measures can be modified through the adaptive management process. (9) Comment: Conservation measures detailed in the UDC are limited to ``Occupied Sites'' with currently known populations. Conservation measures would not apply to newly discovered occupied sites. Since newly discovered sites could be important to the recovery of the species, we request that the Service clarify the applicability of the 4(d) rule to these sites and the role the Working Group should play in this regard. Our response: In this final rule, we have clarified that any site determined to be occupied by Georgetown salamanders in the future will be considered ``occupied'' and the protective measures outlined in Appendix A of the UDC must be followed in order to be covered under this 4(d) rule. We recommend that the Working Group make efforts to survey suitable habitat within the range of the Georgetown salamander to identify all sites occupied by the species. (10) Comment: It is unclear whether a landowner owning a newly discovered site occupied by Georgetown salamanders outside the City of Georgetown's extra-territorial jurisdiction would be covered for incidental take if [s]he were to conduct activities consistent with the conservation measures contained in the UDC. Regulatory predictability and incidental take coverage for all affected landowners are important for the ultimate recovery of the species. Our response: Regulated activities located outside of the City of Georgetown's jurisdiction are not covered by the UDC. Therefore, only incidental take from those activities that are in the City of Georgetown's jurisdiction are potentially exempt from take prohibitions through this 4(d) rule. All currently known Georgetown salamander sites are covered by the UDC. Public Comments (11) Comment: The proposed revised 4(d) rule states that the boundaries of the stream buffer coincides with the boundaries of the FEMA or calculated floodplain, but may be no smaller than [61 m (200 ft)] in width. It should be noted that, while the stream buffer varies depending on the size of the stream (size of the stream is based on the size of the drainage area, which influences the size of the floodplain), there may be situations under the UDC where the stream buffer is smaller than [61 m (200 ft)] in width. Our response: Per the UDC 11.07, only stream buffers without FEMA or calculated floodplains may be no smaller than 61 m (200 ft) in width. We have made the appropriate clarification in this final rule. (12) Comment: The proposed exemption from prohibitions, as it will be outlined in Sec. 17.43(e)(2) of [title 50 of] the CFR, states that ``incidental take of the Georgetown salamander will not be considered a violation of section 9 of the Act if the take occurs on privately owned, State, or county land. . . .'' This exemption must include, at a minimum, city-owned property. Our response: We have edited the exemption to include all non- Federal land. (13) Comment: The proposed rule, if finalized, could not be amended substantially unless and until the Service allowed for public comment and input. Public input would not be allowed to a greater degree in connection with an incidental take permit than it has been in connection with the proposed rule. Our response: This is correct. Future changes to the content of this 4(d) rule require a public notice and comment period. However, future changes related to the conservation of the Georgetown salamander may be made to the conservation measures in UDC Appendix A, without public notice and comment, if they are agreed upon by the Working Group through the adaptive management process outlined in the UDC, provide equal or greater conservation benefits to the Georgetown salamander, and are approved by the Service. (14) Comment: The proposed rule does not exempt any set of activities in the ``red zone.'' The proposed rule does not pick apart who is regulated or not. Rather, it focuses on actual implementation of water quality measures consistent with those set forth in the UDC and listed in the proposed rule. A non-regulated entity can presumably meet the standard set forth in the proposed rule, not because such an activity is exempt from regulations, but because it would have affirmatively implemented the water quality measure set forth in the proposed rule and UDC. While it is true that the UDC applies only to regulated activities, the exemption from take in the proposed rule applies to all activities (and only those activities), regulated or not, that are consistent with the conservation measures in the UDC; that is, activities for which the project proponent has performed a geologic assessment, abided by the limitations described in the UDC for no-disturbance and minimal-disturbance zones, established buffers around springs and streams, etc. Our response: The UDC 11.07 and Appendix A were specifically designed for regulated activities. Other kinds of non-regulated activities could have different impacts not addressed with this set of measures. Non-regulated activities that voluntarily follow the UDC 11.07 or Appendix A are not covered by this final 4(d) rule, and project proponents may choose to work with the Service to obtain take coverage. (15) Comment: The Service should permit take under section 10 rather than adopt a special 4(d) rule because the resulting HCP cannot be weakened through amendment (unlike the City of Georgetown UDC), the section 10 process provides greater protections for the salamanders compared to the City of Georgetown UDC, and the process provides an open process in which the public can be involved. Our response: Section 10 permits are voluntary, are tailored towards individual applicants, would only cover known occupied sites, and have different criteria for permit issuance than the Act requires for issuance of a 4(d) rule. It is not certain that the Service would receive applications for section 10 permits that would provide greater protections for the Georgetown salamander over the entire range of the species. The 4(d) rule provides a landscape-level approach that is consistently implemented throughout the range of the Georgetown salamander, including unoccupied sites. While it is true that the conservation measures in UDC Appendix A may be revised, those changes would not be covered under this 4(d) rule unless they are agreed upon by the Working Group through the adaptive management process outlined in the UDC, provide [[Page 47425]] equal or greater conservation benefits to the Georgetown salamander, and are approved by the Service. In addition, we have a ``No Surprises'' policy for section 10 incidental take permits, which states, if unforeseen circumstances occur during the life of an HCP, the Service will not require additional lands, additional funds, or additional restrictions on lands or other natural resources released for development or use, from any permittee, who in good faith is adequately implementing or has implemented an approved HCP. This policy makes HCPs less flexible in terms of requiring more stringent conservation measures over time in response to new information. Given the amount of uncertainty in how best to protect Georgetown salamander habitat quality at individual sites, the flexibility provided in the adaptive management approach of the UDC is desirable. We believe the development of this 4(d) rule has been an open process comparable to that of a section 10 permit process. In addition, the process of amending the UDC is very transparent, involving monthly meetings of the Unified Development Code Advisory Committee that are open to the public with minutes and agendas posted online (https://government.georgetown.org/unified-development-code-advisory-board-2/). (16) Comment: The 4(d) rule allows degradation of water quality and, therefore, is not necessary and advisable for the conservation of the Georgetown salamander. Our response: The protective measures provided for in the 4(d) rule are intended to address the threat of water quality degradation from urbanization throughout the range of the species. We have found that the 4(d) rule positively contributes to the recovery of the Georgetown salamander by addressing the primary threat to the species and that these measures are ``necessary and advisable for the conservation'' of the Georgetown salamander (see Determination section above). (17) Comment: Numerous activities that may degrade water quality are entirely exempted and, therefore, allowed within the zones and buffers described in the City of Georgetown UDC. The Service should exempt only ``regulated activities'' because those are the only activities that are actually regulated by the UDC. In this way, threats such as oil and gas activities, agricultural operations, and residential developments on lots greater than 2 ha (5 ac), which are currently unregulated and, therefore, do not contribute to the conservation of the salamander, would not receive the benefit of protection from incidental take. Our response: We agree and have clarified this issue in the final 4(d) rule. Also, please see our response to Comment #14. (18) Comment: Because the proposed special rule references the Ordinance instead of prescribing all the necessary conservation measures, the City could receive the benefits of protection from section 9 even if the City weakens the Ordinance through amendment. To solve this problem, the Service must use the section 10 process, describe all the necessary conservation measures in the Ordinance, or modify the 4(d) rule to state on its face what is and what is not authorized. At a bare minimum, the agency must specifically reference the version of the Ordinance adopted on December 20, 2013. Our response: The final rule clarifies that modifications to UDC Appendix A are covered under the 4(d) rule only if they are agreed upon by the Working Group through the adaptive management process, provide equal or greater conservation benefits to the Georgetown salamander, and are approved by the Service. In order to allow this important adaptive management process to be implemented, we have revised the final 4(d) rule to note that the provisions apply only to Service- endorsed versions of UDC 11.07 and Appendix A. (19) Comment: It concerns us that the proposed 4(d) special rule is proceeding without scientific peer review. Our response: Although our February 24, 2014, proposed 4(d) rule announced that we were not conducting a peer review, we did conduct a peer review of the proposed 4(d) rule during the second comment period (April 9, 2015, to May 11, 2015). We requested peer review from five water quality protection experts and received reviews from two of the five. The peer reviews, along with the other comments and materials we received, are available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2014-0008. (20) Comment: The UDC will not protect the quantity of spring flows or threats to water quality from points more distant than 50-300 m (164-984 ft) from spring sites. The UDC on which the proposed 4(d) rule is based does not adequately protect groundwater quality, including recharge features, caves, conduits, or local aquifers. The only substantive contribution made by the UDC is to decrease the probability of wholesale destruction by physical disturbance of occupied springs, but that is just one of many threats to the species. Our response: We believe the regulations in the UDC provide some protections to recharge features and water quality in the aquifer as a whole, primarily through the required stream buffers. Although the UDC addresses water quality, regulating every threat to the species is outside the scope of the UDC. In addition, as affirmed in State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule need not address all the threats to the species. Activities that are not covered by this 4(d) rule and that may result in take to the species would need to be covered through sections 7 or 10 of the Act. (21) Comment: The UDC does not specify whether any new population discoveries in the future will be treated as ``Edwards Springs'' with a 50-m (164-ft) buffer or as occupied sites with a 300-m (984-ft) buffer. Furthermore, the UDC does not require population surveys for salamander presence in currently occupied sites or at sites that are currently thought to be unoccupied. Therefore, it provides zero protection for spring sites that are determined in the future to be occupied by salamanders. Our response: We have clarified in the final 4(d) rule that any site determined to be occupied by Georgetown salamanders in the future will be considered ``occupied'' and require the protective measures outlined in Appendix A of the UDC to be covered under this 4(d) rule. (22) Comment: Under the 4(d) rule, the Service should allow the City of Georgetown to conduct all technical reviews related to compliance with the UDC, including review and approval of subdivision plats, site plans, or other plans to be in compliance with the UDC. The UDC already requires that all development within the salamanders' known distribution may not begin until a geologic assessment has been conducted and accepted by the City and all project plats, site plans, and infrastructure construction plans reflect occupied springs and required buffers. The City of Georgetown is the logical entity to conduct this review under the UDC, as City staff are the most knowledgeable about local codes, ordinances, and environmental conditions and will ensure technical reviews comply with the UDC. Our response: The City of Georgetown will implement and enforce the regulations in chapter 11.07 of the UDC. The City, with assistance of the Working Group (comprising representatives from the City of Georgetown, Williamson County, Texas Commission on [[Page 47426]] Environmental Quality, Texas Parks and Wildlife Department, university scientists, private real estate developers, and the Service), will also review and approve projects that wish to follow the guidelines described in Appendix A of the UDC. The Service has no intention of reviewing individual projects unless the developers wish to obtain an incidental take permit through section 10, or if a Federal nexus exists through section 7, instead of following the UDC. (23) Comment: The required buffers will not infringe too seriously on Georgetown residents. The ``Minimal-Disturbance Zone'' will allow those who wish to live near rivers and springs that are the salamander's habitats to do so, as long as the residential areas are low density. Recreational activities like fishing or boating would not be severely limited either, as the ``No-Disturbance Zone'' on the river stretches only [80 m (262 ft)] in either direction. This is a significant buffer for the salamander, but it is not a far distance for humans to traverse. Our response: The ``No-Disturbance Zone'' of Appendix A of the UDC does not apply to recreation activities. Only regulated activities (as defined in title 30, Texas Administrative Code, section 213.3(28)) are prohibited within this zone. (24) Comment: Stream buffers of at least 23 m (75 ft) may not be large enough to considerably reduce water pollution. Salamanders are affected by slight changes in pH and increase of chemicals in the water. The small population sizes of Georgetown salamanders greatly increase their risk of extinction. Therefore, more studies on the biology and population demographics of this species should be performed before additional urban development is allowed near these crucial habitat sites. Our response: The adaptive management process is a component of chapter 11.07 and Appendix A of the UDC that allows changes to the regulations in response to new information. If there is adequate evidence that the current regulations are not protective enough for the Georgetown salamander, the Working Group will recommend changes to the UDC that meet the overall management goals. (25) Comment: This plan essentially provides a loophole for developers to continue construction if they survey the area themselves. There is no outside authority to check if salamander habitat will be disturbed. This could potentially allow for corrupt results of the investigation to be passed off as legitimate. Our response: This 4(d) rule does not provide a loophole, because all individual project proponents continue to be responsible for determining impacts on listed species and seeking the appropriate take coverage based on their determination. (26) Comment: If the development is single-family residential, two- family residential, or on a lot smaller than 2 ha (5 ac), the assessment from the Federal Government would be waived. Any construction, no matter how small it may be, will have an impact on the environment. Our response: There is no Federal Government assessment that would be waived from residential developments. Geologic assessments (which have to be completed under the UDC 11.07 regulations) are not required to be submitted to the City of Georgetown if the proposed development is a small (less than 2-ha (5-ac)) single-family and two-family residential development located in a small (25.9-ha (64-ac)) watershed. However, these developments are required to implement all other UDC water quality measures. Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this final 4(d) rule in a manner consistent with these requirements. Regulatory Flexibility Act Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency must publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for ``significant impact'' and a threshold for a ``substantial number of small entities.'' See 5 U.S.C. 605(b). Based on the information that is available to us at this time, we certify that this regulation will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale. On February 24, 2014 (79 FR 10236), we published the final determination to list the Georgetown salamander as a threatened species. That rule became effective on March 26, 2014. As a result, the Georgetown salamander is currently covered by the full protections of the Act, including the full section 9 prohibitions that make it illegal for any person subject to the jurisdiction of the United States to take (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any wildlife species listed as an endangered species, without written authorization. It also is illegal under section 9(a)(1) of the Act to possess, sell, deliver, carry, transport, or ship any such wildlife that is taken illegally. Prohibited actions consistent with section 9 of the Act are outlined for threatened species in 50 CFR 17.31(a) and (b). This final 4(d) rule states that all prohibitions in 50 CFR 17.31(a) and (b) will apply to the Georgetown salamander, except regulated activities that are conducted consistent with the water quality protective measures contained in Chapter 11.07 and Appendix A of the Unified Development Code, which would result in a less restrictive regulation under the Act, as it pertains to the Georgetown [[Page 47427]] salamander, than would otherwise exist. For the above reasons, we certify that the final rule will not have a significant economic impact on a substantial number of small entities. Therefore, a final regulatory flexibility analysis is not required. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings: (a) This final rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both ``Federal intergovernmental mandates'' and ``Federal private sector mandates.'' These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal intergovernmental mandate'' includes a regulation that ``would impose an enforceable duty upon State, local, or [T]ribal governments'' with two exceptions. It excludes ``a condition of Federal assistance.'' It also excludes ``a duty arising from participation in a voluntary Federal program,'' unless the regulation ``relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and [T]ribal governments under entitlement authority,'' if the provision would ``increase the stringency of conditions of assistance'' or ``place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,'' and the State, local, or Tribal governments ``lack authority'' to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. ``Federal private sector mandate'' includes a regulation that ``would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.'' (b) This 4(d) rule promulgates that all prohibitions in 50 CFR 17.31(a) and (b) will apply to the Georgetown salamander, except activities that are conducted consistent with the water quality protection measures contained in Chapter 11.07 and Appendix A of the Unified Development Code, which would result in a less restrictive regulation under the Act, as it pertains to the Georgetown salamander, than would otherwise exist. As a result, we do not believe that this rule would significantly or uniquely affect small governments. Therefore, a Small Government Agency Plan is not required. Takings In accordance with Executive Order 12630, this final rule will not have significant takings implications. We have determined that the rule has no potential takings of private property implications as defined by this Executive Order because this 4(d) rule will result in a less- restrictive regulation under the Endangered Species Act than would otherwise exist. A takings implication assessment is not required. Federalism In accordance with Executive Order 13132, this final 4(d) rule does not have significant Federalism effects. A federalism summary impact statement is not required. This rule will not have substantial direct effects on the State, on the relationship between the Federal Government and the State, or on the distribution of power and responsibilities among the various levels of government. Civil Justice Reform In accordance with Executive Order 12988, the Office of the Solicitor has determined that this final rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Energy Supply, Distribution or Use (Executive Order 13211) Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking actions that significantly affect energy supply, distribution, and use. For reasons discussed within this final rule, we believe that the rule will not have any effect on energy supplies, distribution, and use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) We have prepared a final environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969. For information on how to obtain a copy of the final environmental assessment, see ADDRESSES, above. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We determined that there are no known tribal lands within the range of the Georgetown salamander. Authors The primary authors of this final rule are the staff members of the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17--[AMENDED] 0 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless otherwise noted. [[Page 47428]] 0 2. Amend Sec. 17.43 by adding paragraph (e) to read as follows: Sec. 17.43 Special rules--amphibians. * * * * * (e) Georgetown salamander (Eurycea naufragia). (1) Prohibitions. Except as noted in paragraph (e)(2) of this section, all prohibitions and provisions of Sec. Sec. 17.31 and 17.32 apply to the Georgetown salamander. (2) Exemptions from prohibitions. Incidental take of the Georgetown salamander will not be considered a violation of section 9 of the Act if the take occurs on non-Federal land from regulated activities that are conducted consistent with the water quality protection measures contained in chapter 11.07 and Appendix A of the City of Georgetown (Texas) Unified Development Code (UDC), as endorsed by the U.S. Fish and Wildlife Service. * * * * * Dated: July 28, 2015. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2015-19335 Filed 8-6-15; 8:45 am] BILLING CODE 4310-55-P
![47418 Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Rules and Regulations
tuberculosis, fungal diseases), subsequent abnormal leakage of air. VILI ACTION: Final rule.
radiotherapy, tracheal surgery, trauma, manifests as iatrogenic pneumothorax
congenital, and inflammatory or (abnormal air from alveolar rupture in SUMMARY: We, the U.S. Fish and
autoimmune diseases will not be the pleural space), pneumomediastinum Wildlife Service, finalize a rule under
considered post-intubation tracheal (abnormal air from alveolar rupture in authority of section 4(d) of the
stenosis. Post-intubation tracheal the mediastinum (middle part of the Endangered Species Act of 1973, as
stenosis requires either tracheostomy chest between the lungs)), pulmonary amended, that provides measures that
with placement of a tracheostomy tube interstitial emphysema (abnormal air in are necessary and advisable to provide
or endotracheal intubation. Diagnosis the lung interstitial space between the for the conservation of the Georgetown
requires symptoms of upper airway alveoli), subpleural air cysts (an extreme salamander (Eurycea naufragia), a
obstruction such as stridor (inspiratory form of pulmonary emphysema where species that occurs in Texas. This final
wheeze) or exertional dyspnea the abnormal air in the interstitial space 4(d) rule will provide the Service the
(increased shortness of breath with has pooled into larger pockets), opportunity to work cooperatively, in
exertion), and positive radiologic subcutaneous emphysema (abnormal air partnership with the local community
studies showing abnormal narrowing of from alveolar rupture that has dissected and State agencies, on conservation of
the trachea or bronchoscopic evaluation into the skin), pneumopericardium the Georgetown salamander and the
that demonstrates abnormal narrowing. (abnormal air from alveolar rupture that ecosystems on which it depends.
(6) Ventilator-Associated Pneumonia has traveled to the pericardium This 4(d) rule is necessary and
(VAP) and Ventilator-Associated (covering of the heart)), advisable to provide for the
Tracheobronchitis (VAT). (i) VAP is pneumoperitoneum (abnormal air from conservation of the Georgetown
defined as an iatrogenic pneumonia alveolar rupture that has moved into the salamander because it strengthens water
caused by the medical treatment of abdominal space), or systemic air quality protection measures throughout
mechanical ventilation. Similarly, VAT embolism (abnormal air from alveolar the species’ range, allows for
is an iatrogenic infection of the trachea rupture that has moved into the blood). consideration of new information to
and/or bronchi caused by mechanical To qualify as Table injuries, these optimize conservation measures, and
ventilation. The initial manifestation of manifestations must occur in patients furthers conservation partnerships that
VAP and VAT must occur more than 48 who are being mechanically ventilated can be leveraged to improve the status
hours after intubation (placement of the at the time of initial manifestation of the of the Georgetown salamander.
breathing tube) and up to 48 hours after VILI. DATES: This rule is effective September
extubation (removal of the breathing (8) Bleeding events. Bleeding events 8, 2015.
tube). VAP will be considered to be are defined as excessive or abnormal ADDRESSES: This final rule, the final
present when the patient demonstrates bleeding in patients who are under the environmental assessment, and a list of
a new or progressive radiographic pharmacologic effects of anticoagulant references cited are available on the
infiltrate that is in the lungs and therapy provided for extracorporeal Internet at http://www.regulations.gov
consistent with pneumonia, fever, membrane oxygenation (ECMO) under Docket No. FWS–R2–ES–2014–
leukocytosis (increased white blood cell treatment. 0008, or by mail from the Austin
count) or leucopenia (decreased white (c) Covered countermeasures. The Ecological Services Field Office (see FOR
blood cell count), purulent (containing Office of the Secretary publishes FURTHER INFORMATION CONTACT).
pus) tracheal secretions from a tracheal Secretarial declarations on the following Comments and materials we received
aspirate, and a positive lower covered countermeasures in the Federal are available for public inspection at
respiratory tract culture. The positive Register: http://www.regulations.gov. All of the
lower respiratory tract culture is a (1) Pandemic influenza vaccines; comments, materials, and
diagnostic requirement only if there has (2) Tamiflu; documentation that we considered in
not been a change in antibiotics in the (3) Relenza; this rulemaking are available by
72 hours prior to collection of the (4) Peramivir; appointment, during normal business
culture. In addition, a tracheal aspirate (5) Personal respiratory protection hours at the Austin Ecological Services
that does not demonstrate bacteria or devices; Field Office (see FOR FURTHER
inflammatory cells in a patient without (6) Respiratory support devices; INFORMATION CONTACT).
a change in antibiotics in the previous (7) Diagnostic testing devices.
72 hours is unlikely to be VAP and shall FOR FURTHER INFORMATION CONTACT:
not be considered a condition set forth [FR Doc. 2015–19228 Filed 8–6–15; 8:45 am] Adam Zerrenner, Field Supervisor, U.S.
in the Table. BILLING CODE 4165–15–P Fish and Wildlife Service, Austin
(ii) VAT will be considered to be Ecological Services Field Office, 10711
present when the patient demonstrates Burnet Rd., Suite 200, Austin, TX
fever, leukocytosis or leukopenia, DEPARTMENT OF THE INTERIOR 78758; telephone 512–490–0057;
purulent tracheal secretions, and a facsimile 512–490–0974. Persons who
positive tracheal aspirate culture in the Fish and Wildlife Service use a telecommunications device for the
absence of a change of antibiotics within deaf (TDD) may call the Federal
the 72 hours prior to culture. Tracheal 50 CFR Part 17 Information Relay Service (FIRS) at
colonization with microorganisms is [Docket No. FWS–R2–ES–2014–0008; 800–877–8339.
common in intubated patients, but in 4500030113] SUPPLEMENTARY INFORMATION:
the absence of clinical findings is not a
RIN 1018–BA32 Previous Federal Actions
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sign of VAT.
(7) Ventilator-Induced Lung Injury Endangered and Threatened Wildlife On August 22, 2012, we published a
(VILI). VILI results from mechanical and Plants; 4(d) Rule for the proposed rule in the Federal Register
trauma such as volutrauma leading to Georgetown Salamander (77 FR 50768) to list the Georgetown
rupture of alveoli (air sacs in the lungs salamander (Eurycea naufragia), Salado
where oxygen and carbon dioxide are AGENCY: Fish and Wildlife Service, salamander (Eurycea chisholmensis),
exchanged with the blood) with Interior. Jollyville Plateau salamander (Eurycea
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stream buffer requirements, and Appendix A establishes a ‘‘No- UDC specifically applies to the
exemptions to the spring and stream Disturbance Zone’’ in the stream or guidelines (i.e., conservation measures)
buffer requirements of section waterway into which a spring drains found in Appendix A; therefore, the
11.07.003. Small (less than 2-ha (5-ac)) directly; this zone extends 80 m (264 ft) guidelines described in Appendix A
single-family and two-family residential upstream and downstream from the may change over time if they would
developments are exempt from approximate center of the spring outlet result in equal or better conservation
submitting a geologic assessment; of an occupied site and is bounded by benefits to the Georgetown salamander,
however, these developments are the top of the bank. No regulated as determined by the Service. For
required to implement UDC water activities may occur within the ‘‘No- example, if experience gained during
quality measures. Landowners may Disturbance Zone.’’ In addition, implementation of the guidelines or
request to the City of Georgetown a Appendix A establishes a ‘‘Minimal- new scientific information suggests that
variance from the spring and stream Disturbance Zone’’ for the subsurface a buffer distance was either too small,
buffer requirements in UDC 11.07 if: area that drains to the spring(s) at an or larger than needed, to achieve the
The variance is not contrary to the occupied site; this zone consists of the intended benefits, that buffer distance
public interest; due to special area within 300 m (984 ft) of the could be modified. However, the
conditions, a literal enforcement of the approximate center of the spring outlet activities covered under Appendix A
ordinance would result in unnecessary of an occupied site, except those areas (i.e., regulated activities) are not subject
hardship; and the spirit of the ordinance within the ‘‘No-Disturbance Zone.’’ to change under the adaptive
is observed and substantial justice is Most regulated activities are also management provisions described in the
done, in accordance with UDC section prohibited in the ‘‘Minimal-Disturbance UDC. In other words, exercising of
2.05.010.A.6. These variances and Zone,’’ but single-family developments, adaptive management under this 4(d)
exemptions apply only to sites not limited parks and open space rule cannot expand the scope of the
occupied by Georgetown salamanders. development, and wastewater covered activities beyond regulated
Properties with a site occupied by the infrastructure will be allowed. For activities (as defined in title 30, Texas
Georgetown salamander are exempt additional details on the buffers around Administrative Code, section 213.3(28)).
from the spring and stream buffer occupied sites and prohibited actions, The Working Group will develop an
requirements in chapter 11.07. Rather, please refer to the UDC Appendix A. annual report regarding the preservation
UDC Appendix A outlines conservation In general, this 4(d) rule does not of the Georgetown salamander,
measures (which are voluntary under apply to deviations from the water continuous monitoring of the
the UDC) to be implemented when quality measures in UDC 11.07 and Georgetown salamander, assessment of
undertaking regulated activities that Appendix A. Any variance from the research priorities, and the effectiveness
occur on a tract of land with an measures and guidelines described in of the water quality regulations and
occupied site or within 984 ft (300 m) UDC 11.07 (non-occupied sites) is not guidelines. Copies of the February 24,
of an occupied site. An ‘‘occupied site’’ covered by this final 4(d) rule, unless 2015, dated UDC 11.07 and Appendix A
is defined in the UDC as any spring that variance has been granted by the are available at http://
identified as a critical habitat unit by City of Georgetown. In addition, www.regulations.gov at Docket No.
the Service for the Georgetown variances from the spring and stream FWS–R2–ES–2014–0008. Any revisions
salamander and includes the following buffer requirements of UDC 11.07 may to Appendix A will be made available
sites: Cobb Well, Cobb Springs, Cowen be granted by the City of Georgetown at https://udc.georgetown.org/udc-
Creek Spring, Bat Well Cave, Walnut only if the variance is not contrary to amendments/.
Spring, Twin Spring, Hogg Hollow the public interest, if due to special
Spring, Cedar Hollow Spring, Knight conditions a literal enforcement of the Determination
(Crockett Garden) Spring, Cedar Breaks ordinance would result in unnecessary Section 4(d) of the Act states that ‘‘the
Hiking Trail Spring, Water Tank Cave, hardship, and if the spirit of the Secretary shall issue such regulations as
Avant’s (Capitol Aggregates), Buford ordinance is observed and substantial [s]he deems necessary and advisable to
Hollow Springs, Swinbank Spring, justice is done, in accordance with UDC provide for the conservation’’ of species
Shadow Canyon, San Gabriel Spring, section 2.05.010.A.6. Projects involving listed as threatened species.
and Garey Ranch Springs. For the habitat occupied by the Georgetown Conservation is defined in the Act to
purposes of this 4(d) rule, however, we salamander (which are not eligible for mean ‘‘to use and the use of all methods
define an occupied site to be any site variances) where the project proponent and procedures which are necessary to
where Georgetown salamanders have chooses not to follow the voluntary bring any endangered species or
been found in the past or new sites guidelines in Appendix A of the UDC, threatened species to the point at which
found in the future. may work with the Service to pursue the measures provided pursuant to [the
For activities involving habitat take coverage by developing a habitat Act] are no longer necessary.’’
occupied by the Georgetown conservation plan (HCP) in accordance The courts have recognized the extent
salamander, the final 4(d) rule provides with section 10 of the Act. of the Secretary’s discretion under this
that take of the Georgetown salamander Section 11.07.008 of the UDC also standard to develop rules that are
that is incidental to regulated activities establishes an Adaptive Management appropriate for the conservation of a
that are conducted consistent with the Working Group (Working Group) that is species. For example, the Secretary may
guidelines described in Appendix A of responsible for reviewing data on a find that it is necessary and advisable
the UDC will not be prohibited under regular basis and making not to include a taking prohibition, or to
the Act. Similar to chapter 11.07 of the recommendations for specific changes include a limited taking prohibition. See
Alsea Valley Alliance v. Lautenbacher,
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UDC, the guidelines in Appendix A in the management directions related to
establish stream and spring buffers and the voluntary conservation measures for 2007 U.S. Dist. Lexis 60203 (D. Or.
allowable activities within those buffers; occupied sites in Appendix A. Adaptive 2007); Washington Environmental
however, the measures described in management for preservation of the Council v. National Marine Fisheries
Appendix A create larger, more Georgetown salamander is one of the Service, and 2002 U.S. Dist. Lexis 5432
protective buffers than those that appear duties tasked to the Working Group. The (W.D. Wash. 2002). In addition, as
in chapter 11 for unoccupied sites. First, adaptive management described in the affirmed in State of Louisiana v. Verity,
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853 F.2d 322 (5th Cir. 1988), the rule Georgetown salamander, as explained in salamander than we could without it
need not address all the threats to the the paragraphs that follow. because it encourages rangewide
species. As noted by Congress when the The local community in the City of implementation of water quality
Act was initially enacted, ‘‘once an Georgetown and Williamson County has protective measures that are aimed at
animal is on the threatened list, the expressed a desire to design and addressing the primary threat of habitat
Secretary has an almost infinite number implement a local solution to modification and degradation for
of options available to him [her] with conserving the natural resources in their Georgetown salamanders. The majority
regard to the permitted activities for county, including water quality and the of Georgetown salamanders occur
those species. [S]he may, for example, Georgetown salamander (City of within 164 ft (50 m) of a spring outlet
permit taking, but not importation of Georgetown Resolution No. 082812–N). (Pierce et al. 2010, p. 294; TPWD 2011,
such species,’’ or she may choose to All currently known locations for the p. 3); this coincides with the spring and
forbid both taking and importation but Georgetown salamander are within the stream buffers for unoccupied sites. We
allow the transportation of such species, jurisdiction of the City of Georgetown, also believe the salamander populations
as long as the prohibitions, and making the city an appropriate entity to exist through underground conduits that
exceptions to those prohibitions, will manage conservation measures that may extend 300 m (984 ft) around cave
‘‘serve to conserve, protect, or restore protect Georgetown salamander habitat. or spring points; this area coincides
the species concerned in accordance Because impervious cover levels within with the size of the ‘‘Minimal-
with the purposes of the Act’’ (H.R. Rep. most of the watersheds known to be Disturbance Zones’’ for occupied sites.
No. 412, 93rd Cong., 1st Sess. 1973). occupied by the Georgetown salamander By limiting development activities
Section 9 prohibitions make it illegal are still relatively low, a window of within these respective areas, the
for any person subject to the jurisdiction opportunity exists to design and measures in the UDC 11.07 and
of the United States to take (including implement measures to protect water Appendix A are expected to limit water
harass, harm, pursue, hunt, shoot, quality and, therefore, conserve the quality degradation in areas that may
wound, kill, trap, capture, or collect; or salamander. The City and County’s provide suitable surface or subsurface
attempt any of these), import or export, approach for accomplishing this habitat for the Georgetown salamander
ship in interstate commerce in the conservation goal includes regulatory now and in the future.
course of commercial activity, or sell or and non-regulatory actions, as described Although the areas that provide
offer for sale in interstate or foreign below. Regulatory actions include recharge and the source water for
passage of the Edwards Aquifer specific areas occupied by the
commerce any wildlife species listed as
Recharge Zone Water Quality Ordinance salamander have not been precisely
an endangered species, without written
(Ordinance No. 2013–59) by the delineated, the watershed-level
authorization. It also is illegal under
Georgetown City Council on December approach makes it likely that unknown
section 9(a)(1) of the Act to possess, sell,
20, 2013, and the revisions to their UDC recharge areas are receiving water
deliver, carry, transport, or ship any
(chapter 11.07) finalized on February quality protection under the UDC. This
such wildlife that is taken illegally.
24, 2015. Their approach also includes is because the UDC prohibits regulated
Prohibited actions consistent with
non-regulatory actions, such as the activities within buffers around all
section 9 of the Act are outlined for
technical guidance provided in streams located within the recharge
threatened wildlife in 50 CFR 17.31(a)
Appendix A of the UDC, which outlines zone and the City of Georgetown
and (b). For the Georgetown salamander, additional conservation measures to jurisdiction. In karst aquifer systems,
the Service has determined that a 4(d) protect water quality and to avoid direct streams often contain important
rule tailored to its specific conservation destruction of occupied sites. recharge features called swallow holes
needs is necessary and advisable, as Habitat modification, in the form of or swallets, which allow the stream to
discussed below. This final 4(d) rule degraded water quality and quantity and continue flowing underground in a
provides that all prohibitions in 50 CFR disturbance of spring sites, is the conduit and feed the larger aquifer or
17.31(a) and (b) will apply to the primary threat to the Georgetown even small springs directly (White 1998,
Georgetown salamander, except as salamander. The conservation measures p. 172). For example, in the Barton
described below. in both chapter 11.07 and Appendix A Springs Segment of the Edwards
Under this final 4(d) rule, incidental of the UDC provide a variety of water Aquifer, hydrologists generally agree
take of the Georgetown salamander will quality protection measures, such as the that most of the aquifer’s recharge
not be considered a violation of section creation of buffers around springs and comes via these streambed recharge
9 of the Act if the take occurs on any streams where regulated activities are features (Mahler et al. 2011, p. 4).
non-Federal land and from regulated prohibited, designed to lessen impacts Although similar research is lacking in
activities that are conducted consistent to the water quality of springs and the Northern Segment of the Edwards
with the water quality protection streams in the Edwards Aquifer Aquifer, it is likely that the aquifer
measures contained in chapter 11.07 Recharge Zone. The UDC is applied feeding Georgetown salamander habitat
and Appendix A of the City of throughout the watersheds that contain works in a similar way because both
Georgetown Unified Development Code. the Georgetown salamander. Absent this areas are karst aquifer systems, thereby
This final 4(d) rule refers to the 4(d) rule, the status quo would be to making the stream buffers of the UDC
definition of ‘‘regulated activities’’ in address development impacts through crucial in protecting groundwater
title 30, Texas Administrative Code, traditional tools (that is, sections 7 and quality.
section 213.3(28), which is any 10 of the Act) that are generally applied This watershed-level approach also
construction-related or post- at the project-by-project scale. The includes an adaptive management
construction activities on the recharge
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watershed-level approach in UDC 11.07 component that will allow the Adaptive
zone of the Edwards Aquifer having the and Appendix A works to avoid Management Working Group (Working
potential for polluting the Edwards incremental environmental degradation Group) to evaluate the response of
Aquifer and hydrologically connected that may go unnoticed on a small, salamander populations to management
surface streams. We have determined individual project scale. Through this actions and quickly respond and
that this provision is necessary and final 4(d) rule, we can achieve a greater recommend adjustments, if necessary, to
advisable for the conservation of the level of conservation for the Georgetown management strategies to protect water
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![47424 Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Rules and Regulations
restrict landowners in some areas that are in the City of Georgetown’s Rather, it focuses on actual
do not influence survival conditions for jurisdiction are potentially exempt from implementation of water quality
the species while potentially not take prohibitions through this 4(d) rule. measures consistent with those set forth
affording protection to other areas that All currently known Georgetown in the UDC and listed in the proposed
do influence survival conditions. We salamander sites are covered by the rule. A non-regulated entity can
believe the proposed rule affords the UDC. presumably meet the standard set forth
[Adaptive Management] Working Group in the proposed rule, not because such
Public Comments
the latitude to study these spring buffers an activity is exempt from regulations,
and offer alternative recommendations (11) Comment: The proposed revised but because it would have affirmatively
if new science dictates that changes 4(d) rule states that the boundaries of implemented the water quality measure
should be made. the stream buffer coincides with the set forth in the proposed rule and UDC.
Our response: The specific boundaries of the FEMA or calculated While it is true that the UDC applies
hydrogeology (for example, recharge floodplain, but may be no smaller than only to regulated activities, the
area) for each site occupied by the [61 m (200 ft)] in width. It should be exemption from take in the proposed
Georgetown salamander has not been noted that, while the stream buffer rule applies to all activities (and only
determined. The Act requires that we varies depending on the size of the those activities), regulated or not, that
use the best available information and stream (size of the stream is based on are consistent with the conservation
does not require that we conduct the size of the drainage area, which measures in the UDC; that is, activities
research to develop new science. In the influences the size of the floodplain), for which the project proponent has
absence of this information, we believe there may be situations under the UDC performed a geologic assessment, abided
a fixed-width buffer is the best where the stream buffer is smaller than by the limitations described in the UDC
alternative for protecting these sites. As [61 m (200 ft)] in width. for no-disturbance and minimal-
new information is discovered, the Our response: Per the UDC 11.07, disturbance zones, established buffers
conservation measures can be modified only stream buffers without FEMA or around springs and streams, etc.
through the adaptive management calculated floodplains may be no Our response: The UDC 11.07 and
process. smaller than 61 m (200 ft) in width. We Appendix A were specifically designed
(9) Comment: Conservation measures have made the appropriate clarification for regulated activities. Other kinds of
detailed in the UDC are limited to in this final rule. non-regulated activities could have
‘‘Occupied Sites’’ with currently known (12) Comment: The proposed different impacts not addressed with
populations. Conservation measures exemption from prohibitions, as it will this set of measures. Non-regulated
would not apply to newly discovered be outlined in § 17.43(e)(2) of [title 50 activities that voluntarily follow the
occupied sites. Since newly discovered of] the CFR, states that ‘‘incidental take UDC 11.07 or Appendix A are not
sites could be important to the recovery of the Georgetown salamander will not covered by this final 4(d) rule, and
of the species, we request that the be considered a violation of section 9 of project proponents may choose to work
Service clarify the applicability of the the Act if the take occurs on privately with the Service to obtain take coverage.
4(d) rule to these sites and the role the owned, State, or county land. . . .’’ (15) Comment: The Service should
Working Group should play in this This exemption must include, at a permit take under section 10 rather than
regard. minimum, city-owned property. adopt a special 4(d) rule because the
Our response: In this final rule, we Our response: We have edited the resulting HCP cannot be weakened
have clarified that any site determined exemption to include all non-Federal through amendment (unlike the City of
to be occupied by Georgetown land. Georgetown UDC), the section 10
salamanders in the future will be (13) Comment: The proposed rule, if process provides greater protections for
considered ‘‘occupied’’ and the finalized, could not be amended the salamanders compared to the City of
protective measures outlined in substantially unless and until the Georgetown UDC, and the process
Appendix A of the UDC must be Service allowed for public comment and provides an open process in which the
followed in order to be covered under input. Public input would not be public can be involved.
this 4(d) rule. We recommend that the allowed to a greater degree in Our response: Section 10 permits are
Working Group make efforts to survey connection with an incidental take voluntary, are tailored towards
suitable habitat within the range of the permit than it has been in connection individual applicants, would only cover
Georgetown salamander to identify all with the proposed rule. known occupied sites, and have
sites occupied by the species. Our response: This is correct. Future different criteria for permit issuance
(10) Comment: It is unclear whether a changes to the content of this 4(d) rule than the Act requires for issuance of a
landowner owning a newly discovered require a public notice and comment 4(d) rule. It is not certain that the
site occupied by Georgetown period. However, future changes related Service would receive applications for
salamanders outside the City of to the conservation of the Georgetown section 10 permits that would provide
Georgetown’s extra-territorial salamander may be made to the greater protections for the Georgetown
jurisdiction would be covered for conservation measures in UDC salamander over the entire range of the
incidental take if [s]he were to conduct Appendix A, without public notice and species. The 4(d) rule provides a
activities consistent with the comment, if they are agreed upon by the landscape-level approach that is
conservation measures contained in the Working Group through the adaptive consistently implemented throughout
UDC. Regulatory predictability and management process outlined in the the range of the Georgetown
incidental take coverage for all affected UDC, provide equal or greater salamander, including unoccupied sites.
While it is true that the conservation
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landowners are important for the conservation benefits to the Georgetown
ultimate recovery of the species. salamander, and are approved by the measures in UDC Appendix A may be
Our response: Regulated activities Service. revised, those changes would not be
located outside of the City of (14) Comment: The proposed rule covered under this 4(d) rule unless they
Georgetown’s jurisdiction are not does not exempt any set of activities in are agreed upon by the Working Group
covered by the UDC. Therefore, only the ‘‘red zone.’’ The proposed rule does through the adaptive management
incidental take from those activities that not pick apart who is regulated or not. process outlined in the UDC, provide
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![47426 Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Rules and Regulations
Environmental Quality, Texas Parks and Our response: This 4(d) rule does not 1996), whenever an agency must
Wildlife Department, university provide a loophole, because all publish a notice of rulemaking for any
scientists, private real estate developers, individual project proponents continue proposed or final rule, it must prepare
and the Service), will also review and to be responsible for determining and make available for public comment
approve projects that wish to follow the impacts on listed species and seeking a regulatory flexibility analysis that
guidelines described in Appendix A of the appropriate take coverage based on describes the effects of the rule on small
the UDC. The Service has no intention their determination. entities (small businesses, small
of reviewing individual projects unless (26) Comment: If the development is organizations, and small government
the developers wish to obtain an single-family residential, two-family jurisdictions). However, no regulatory
incidental take permit through section residential, or on a lot smaller than 2 ha flexibility analysis is required if the
10, or if a Federal nexus exists through (5 ac), the assessment from the Federal head of the agency certifies the rule will
section 7, instead of following the UDC. Government would be waived. Any not have a significant economic impact
(23) Comment: The required buffers construction, no matter how small it on a substantial number of small
will not infringe too seriously on may be, will have an impact on the entities. SBREFA amended the RFA to
Georgetown residents. The ‘‘Minimal- environment. require Federal agencies to provide a
Disturbance Zone’’ will allow those who Our response: There is no Federal statement of the factual basis for
wish to live near rivers and springs that Government assessment that would be certifying that the rule will not have a
are the salamander’s habitats to do so, waived from residential developments. significant economic impact on a
as long as the residential areas are low Geologic assessments (which have to be substantial number of small entities.
density. Recreational activities like completed under the UDC 11.07 Thus, for a regulatory flexibility analysis
fishing or boating would not be severely regulations) are not required to be to be required, impacts must exceed a
limited either, as the ‘‘No-Disturbance submitted to the City of Georgetown if threshold for ‘‘significant impact’’ and a
Zone’’ on the river stretches only [80 m the proposed development is a small threshold for a ‘‘substantial number of
(262 ft)] in either direction. This is a (less than 2-ha (5-ac)) single-family and small entities.’’ See 5 U.S.C. 605(b).
significant buffer for the salamander, two-family residential development Based on the information that is
but it is not a far distance for humans located in a small (25.9-ha (64-ac)) available to us at this time, we certify
to traverse. watershed. However, these that this regulation will not have a
Our response: The ‘‘No-Disturbance developments are required to significant economic impact on a
Zone’’ of Appendix A of the UDC does implement all other UDC water quality substantial number of small entities.
not apply to recreation activities. Only measures. The following discussion explains our
regulated activities (as defined in title rationale.
30, Texas Administrative Code, section Required Determinations
213.3(28)) are prohibited within this On February 24, 2014 (79 FR 10236),
Regulatory Planning and Review we published the final determination to
zone. (Executive Orders 12866 and 13563)
(24) Comment: Stream buffers of at list the Georgetown salamander as a
least 23 m (75 ft) may not be large Executive Order 12866 provides that threatened species. That rule became
enough to considerably reduce water the Office of Information and Regulatory effective on March 26, 2014. As a result,
pollution. Salamanders are affected by Affairs (OIRA) in the Office of the Georgetown salamander is currently
slight changes in pH and increase of Management and Budget will review all covered by the full protections of the
chemicals in the water. The small significant rules. OIRA has determined Act, including the full section 9
population sizes of Georgetown that this rule is not significant. prohibitions that make it illegal for any
salamanders greatly increase their risk Executive Order 13563 reaffirms the person subject to the jurisdiction of the
of extinction. Therefore, more studies principles of E.O. 12866 while calling United States to take (harass, harm,
on the biology and population for improvements in the nation’s pursue, hunt, shoot, wound, kill, trap,
demographics of this species should be regulatory system to promote capture, or collect, or attempt to engage
performed before additional urban predictability, to reduce uncertainty, in any such conduct), import or export,
development is allowed near these and to use the best, most innovative, ship in interstate commerce in the
crucial habitat sites. and least burdensome tools for course of commercial activity, or sell or
Our response: The adaptive achieving regulatory ends. The offer for sale in interstate or foreign
management process is a component of executive order directs agencies to commerce any wildlife species listed as
chapter 11.07 and Appendix A of the consider regulatory approaches that an endangered species, without written
UDC that allows changes to the reduce burdens and maintain flexibility authorization. It also is illegal under
regulations in response to new and freedom of choice for the public section 9(a)(1) of the Act to possess, sell,
information. If there is adequate where these approaches are relevant, deliver, carry, transport, or ship any
evidence that the current regulations are feasible, and consistent with regulatory such wildlife that is taken illegally.
not protective enough for the objectives. E.O. 13563 emphasizes Prohibited actions consistent with
Georgetown salamander, the Working further that regulations must be based section 9 of the Act are outlined for
Group will recommend changes to the on the best available science and that threatened species in 50 CFR 17.31(a)
UDC that meet the overall management the rulemaking process must allow for and (b). This final 4(d) rule states that
goals. public participation and an open all prohibitions in 50 CFR 17.31(a) and
(25) Comment: This plan essentially exchange of ideas. We have developed (b) will apply to the Georgetown
provides a loophole for developers to this final 4(d) rule in a manner salamander, except regulated activities
continue construction if they survey the that are conducted consistent with the
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consistent with these requirements.
area themselves. There is no outside water quality protective measures
authority to check if salamander habitat Regulatory Flexibility Act contained in Chapter 11.07 and
will be disturbed. This could potentially Under the Regulatory Flexibility Act Appendix A of the Unified
allow for corrupt results of the (RFA; 5 U.S.C. 601 et seq., as amended Development Code, which would result
investigation to be passed off as by the Small Business Regulatory in a less restrictive regulation under the
legitimate. Enforcement Fairness Act (SBREFA) of Act, as it pertains to the Georgetown
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![Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Rules and Regulations 47427
salamander, than would otherwise exist. would otherwise exist. As a result, we information unless it displays a
For the above reasons, we certify that do not believe that this rule would currently valid OMB control number.
the final rule will not have a significant significantly or uniquely affect small
National Environmental Policy Act (42
economic impact on a substantial governments. Therefore, a Small
U.S.C. 4321 et seq.)
number of small entities. Therefore, a Government Agency Plan is not
final regulatory flexibility analysis is not required. We have prepared a final
required. environmental assessment, as defined
Takings
Unfunded Mandates Reform Act under the authority of the National
In accordance with Executive Order Environmental Policy Act of 1969. For
In accordance with the Unfunded 12630, this final rule will not have information on how to obtain a copy of
Mandates Reform Act (2 U.S.C. 1501 et significant takings implications. We the final environmental assessment, see
seq.), we make the following findings: have determined that the rule has no ADDRESSES, above.
(a) This final rule will not produce a potential takings of private property
Federal mandate. In general, a Federal implications as defined by this Government-to-Government
mandate is a provision in legislation, Executive Order because this 4(d) rule Relationship With Tribes
statute, or regulation that would impose will result in a less-restrictive regulation In accordance with the President’s
an enforceable duty upon State, local, or under the Endangered Species Act than memorandum of April 29, 1994
Tribal governments, or the private would otherwise exist. A takings (Government-to-Government Relations
sector, and includes both ‘‘Federal implication assessment is not required. with Native American Tribal
intergovernmental mandates’’ and
Federalism Governments; 59 FR 22951), Executive
‘‘Federal private sector mandates.’’
Order 13175 (Consultation and
These terms are defined in 2 U.S.C. In accordance with Executive Order
658(5)–(7). ‘‘Federal intergovernmental Coordination with Indian Tribal
13132, this final 4(d) rule does not have Governments), and the Department of
mandate’’ includes a regulation that significant Federalism effects. A
‘‘would impose an enforceable duty the Interior’s manual at 512 DM 2, we
federalism summary impact statement is readily acknowledge our responsibility
upon State, local, or [T]ribal not required. This rule will not have
governments’’ with two exceptions. It to communicate meaningfully with
substantial direct effects on the State, on recognized Federal Tribes on a
excludes ‘‘a condition of Federal the relationship between the Federal
assistance.’’ It also excludes ‘‘a duty government-to-government basis. In
Government and the State, or on the accordance with Secretarial Order 3206
arising from participation in a voluntary distribution of power and
Federal program,’’ unless the regulation of June 5, 1997 (American Indian Tribal
responsibilities among the various Rights, Federal-Tribal Trust
‘‘relates to a then-existing Federal levels of government.
program under which $500,000,000 or Responsibilities, and the Endangered
more is provided annually to State, Civil Justice Reform Species Act), we readily acknowledge
local, and [T]ribal governments under In accordance with Executive Order our responsibilities to work directly
entitlement authority,’’ if the provision 12988, the Office of the Solicitor has with tribes in developing programs for
would ‘‘increase the stringency of determined that this final rule does not healthy ecosystems, to acknowledge that
conditions of assistance’’ or ‘‘place caps unduly burden the judicial system and tribal lands are not subject to the same
upon, or otherwise decrease, the Federal meets the requirements of sections 3(a) controls as Federal public lands, to
Government’s responsibility to provide and 3(b)(2) of the Order. remain sensitive to Indian culture, and
funding,’’ and the State, local, or Tribal to make information available to tribes.
governments ‘‘lack authority’’ to adjust Energy Supply, Distribution or Use We determined that there are no known
accordingly. At the time of enactment, (Executive Order 13211) tribal lands within the range of the
these entitlement programs were: Executive Order 13211 requires Georgetown salamander.
Medicaid; AFDC work programs; Child agencies to prepare Statements of Authors
Nutrition; Food Stamps; Social Services Energy Effects when undertaking
Block Grants; Vocational Rehabilitation actions that significantly affect energy The primary authors of this final rule
State Grants; Foster Care, Adoption supply, distribution, and use. For are the staff members of the Austin
Assistance, and Independent Living; reasons discussed within this final rule, Ecological Services Field Office (see FOR
Family Support Welfare Services; and we believe that the rule will not have FURTHER INFORMATION CONTACT).
Child Support Enforcement. ‘‘Federal any effect on energy supplies, List of Subjects in 50 CFR Part 17
private sector mandate’’ includes a distribution, and use. Therefore, this
regulation that ‘‘would impose an action is not a significant energy action, Endangered and threatened species,
enforceable duty upon the private and no Statement of Energy Effects is Exports, Imports, Reporting and
sector, except (i) a condition of Federal required. recordkeeping requirements,
assistance or (ii) a duty arising from Transportation.
participation in a voluntary Federal Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) Regulation Promulgation
program.’’
(b) This 4(d) rule promulgates that all This rule does not contain collections Accordingly, we amend part 17,
prohibitions in 50 CFR 17.31(a) and (b) of information that require approval by subchapter B of chapter I, title 50 of the
will apply to the Georgetown the Office of Management and Budget Code of Federal Regulations, as set forth
salamander, except activities that are (OMB) under the Paperwork Reduction below:
conducted consistent with the water Act. This rule will not impose
rmajette on DSK2TPTVN1PROD with RULES
quality protection measures contained recordkeeping or reporting requirements PART 17—[AMENDED]
in Chapter 11.07 and Appendix A of the on State or local governments,
Unified Development Code, which individuals, businesses, or ■ 1. The authority citation for part 17
would result in a less restrictive organizations. An agency may not continues to read as follows:
regulation under the Act, as it pertains conduct or sponsor and a person is not Authority: 16 U.S.C. 1361–1407; 1531–
to the Georgetown salamander, than required to respond to a collection of 1544; 4201–4245; unless otherwise noted.
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![47428 Federal Register / Vol. 80, No. 152 / Friday, August 7, 2015 / Rules and Regulations
■ 2. Amend § 17.43 by adding paragraph and 17.32 apply to the Georgetown City of Georgetown (Texas) Unified
(e) to read as follows: salamander. Development Code (UDC), as endorsed
(2) Exemptions from prohibitions. by the U.S. Fish and Wildlife Service.
§ 17.43 Special rules—amphibians. Incidental take of the Georgetown * * * * *
* * * * * salamander will not be considered a
violation of section 9 of the Act if the Dated: July 28, 2015.
(e) Georgetown salamander (Eurycea Stephen Guertin,
take occurs on non-Federal land from
naufragia). Acting Director, U.S. Fish and Wildlife
regulated activities that are conducted
(1) Prohibitions. Except as noted in consistent with the water quality Service.
paragraph (e)(2) of this section, all protection measures contained in [FR Doc. 2015–19335 Filed 8–6–15; 8:45 am]
prohibitions and provisions of §§ 17.31 chapter 11.07 and Appendix A of the BILLING CODE 4310–55–P
rmajette on DSK2TPTVN1PROD with RULES
VerDate Sep<11>2014 15:21 Aug 06, 2015 Jkt 235001 PO 00000 Frm 00030 Fmt 4700 Sfmt 9990 E:\FR\FM\07AUR1.SGM 07AUR1](https://thefederalregister.org/doc/80_FR_47570/page/11.svg)
Document Created: 2015-12-15 10:57:11
Document Modified: 2015-12-15 10:57:11
| 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 | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective September 8, 2015. | |
| 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 47418 | |
| RIN Number | 1018-BA32 | |
| CFR Associated | Endangered and Threatened Species; Exports; Imports; Reporting and Recordkeeping Requirements and Transportation |
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