18138 Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Proposed Rules 

• All hand-delivered and/or 

messenger-delivered paper filings for 

the Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

Twelfth St., SW., Room TW–A325, 

Washington, DC 20554. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 Twelfth Street, SW., 

Washington, DC 20554. 

4. Parties shall also serve one copy 

with the Commission’s copy contractor, 

Best Copy and Printing, Inc. (BPCI), 

Portals II, 445 Twelfth Street, SW., 

Room CY–B402, Washington, DC 20554, 

(202) 488–5300, or via e-mail to 

fcc@bcpiweb.com. Documents in GEN 

Docket No. 86–285 will be available for 

public inspection and copying during 

business hours at the FCC Reference 

Information Center, Portals II, 445 

Twelfth Street, SW., Room CY–A257, 

Washington, DC 20554. The documents 

may also be purchased from BCPI, 

telephone (202) 488–5300, facsimile 

(202) 488–5563, TTY (202) 488–5562, 

e-mail fcc@bcpiweb.com. 

5. Ex Parte Presentations. The Notice 

of Proposed Rulemaking shall be treated 

as a ‘‘permit-but-disclose’’ proceeding in 

accordance with the Commission’s ex 

parte rules, 47 CFR 1.1200 et seq. 

Requirements pertaining to oral and 

written presentations are set forth in 

Section 1.1206(b) of the Commission’s 

rules. 

6. Accessible Formats. To request 

materials in accessible formats for 

people with disabilities (Braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at (202) 418–0432 (tty). 

Ordering Clauses 

7. Accordingly, it is ordered, that, 

pursuant to sections 1, 4(i), 4(j), and 8 

of the Communications Act of 1934, as 

amended, 47 U.S.C. sections 151, 154(i), 

154(j), and 158, this Notice of Proposed 

Rulemaking is hereby adopted. 

8. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Notice of Proposed Rulemaking, 

including the Initial Regulatory 

Flexibility Analysis, to the Chief 

Counsel for Advocacy of the U.S. Small 

Business Administration. 

List of Subjects in 47 CFR Part 1 

Administrative practice and 

procedure. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 1 as follows: 

PART 1—PRACTICE AND 

PROCEDURE 

1. The authority citation for Part 1 

continues to read as follows: 

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 

151, 154(i), 154(j), 155, 157, 225, 303(r), and 

309, unless otherwise noted. 

2. Amend § 1.2107 by revising 

paragraph (c) to read as follows: 

§ 1.2107. Submission of down payment 

and filing of long-form applications. 

* * * * * 

(c) A high bidder that meets its down 

payment obligations in a timely manner 

must, within ten (10) business days after 

being notified that it is a high bidder, 

submit an additional application (the 

‘‘long-form application’’) pursuant to the 

rules governing the service in which the 

applicant is the high bidder. Except as 

otherwise provided in § 1.1104, high 

bidders need not submit an additional 

application filing fee with their longform applications. 

* * * * * 

[FR Doc. 2011–7475 Filed 3–31–11; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2010–0084; 

[MO 92210–0–0008–B2] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To List the Spring Pygmy 

Sunfish as Endangered 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of petition finding and 

initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce a 90-day 

finding on a petition to list the spring 

pygmy sunfish (Elassoma alabamae) as 

endangered under the Endangered 

Species Act of 1973, as amended (Act). 

Based on our review, we find that the 

petition and information currently 

available in our files presents 

substantial scientific or commercial 

information indicating that listing this 

species may be warranted. Therefore, 

with the publication of this notice, we 

are initiating a review of the status of 

the species to determine if the 

petitioned action is warranted. To 

ensure this status review is 

comprehensive, we are requesting 

scientific and commercial data and 

other information regarding this species. 

Based on the status review, we will 

issue a 12-month finding on the 

petition, which will address whether 

the petitioned action is warranted, as 

provided in section 4(b)(3)(B) of the Act. 

DATES: To allow us adequate time to 

conduct this review, we request that we 

receive information on or before May 

31, 2011. Please note that if you are 

using the Federal eRulemaking Portal 

(see ADDRESSES section, below), the 

deadline for submitting an electronic 

comment is 11:59 p.m. Eastern Time on 

this date. After May 31, 2011, you must 

submit information directly to the Field 

Office (see FOR FURTHER INFORMATION

CONTACT section below). Please note that 

we might not be able to address or 

incorporate information that we receive 

after the above requested date. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. In the box that 

reads ‘‘Enter Keyword or ID,’’ enter the 

Docket number for this finding, which 

is FWS–R4–ES–2010–0084. Check the 

box that reads ‘‘Open for Comment/ 

Submission,’’ and then click the Search 

button. You should then see an icon that 

reads ‘‘Submit a Comment.’’ Please 

ensure that you have found the correct 

document before submitting your 

comment. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R4– 

ES–2010–0084; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all information we receive on 

the Internet at http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Request for Information section below 

for more details). 

FOR FURTHER INFORMATION CONTACT: 

Stephen Ricks, Field Supervisor, 

Mississippi Ecological Services Field 

Office, 6578 Dogwood View Parkway, 

Jackson, MS 39213; by telephone (601– 

321–1122); or by facsimile (601–965– 

4340). If you use a telecommunications 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
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device for the deaf (TDD), please call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Request for Information 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly review the status 

of the species (status review). For the 

status review to be complete and based 

on the best available scientific and 

commercial information, we request 

information on the spring pygmy 

sunfish from governmental agencies, 

Native American Tribes, the scientific 

community, industry, and any other 

interested parties. We seek information 

on: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

(2) The factors that are the basis for 

making a listing/delisting/downlisting 

determination for a species under 

section 4(a) of the Endangered Species 

Act of 1973, as amended (Act) (16 

U.S.C. 1531 et seq.), which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) Disease or predation; 

(d) The inadequacy of existing 

regulatory mechanisms; or 

(e) Other natural or manmade factors 

affecting its continued existence. 

If, after the status review, we 

determine that listing the spring pygmy 

sunfish is warranted, we will propose 

critical habitat (see definition in section 

3(5)(A) of the Act), under section 4 of 

the Act, to the maximum extent prudent 

and determinable at the time we 

propose to list the species. Therefore, 

within the geographical range currently 

occupied by the spring pygmy sunfish, 

we request data and information on: 

(1) What may constitute ‘‘physical or 

biological features essential to the 

conservation of the species’’; 

(2) Where these features are currently 

found; and 

(3) Whether any of these features may 

require special management 

considerations or protection. 

In addition, we request data and 

information on ‘‘specific areas outside 

the geographical area occupied by the 

species’’ that are ‘‘essential to the 

conservation of the species.’’ Please 

provide specific comments and 

information as to what, if any, critical 

habitat you think we should propose for 

designation if the species is proposed 

for listing, and why such habitat meets 

the requirements of section 4 of the Act. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Submissions merely stating support 

for or opposition to the action under 

consideration without providing 

supporting information, although noted, 

will not be considered in making a 

determination. Section 4(b)(1)(A) of the 

Act directs that determinations as to 

whether any species is an endangered or 

a threatened species must be made 

‘‘solely on the basis of the best scientific 

and commercial data available.’’ 

You may submit your information 

concerning this status review by one of 

the methods listed in the ADDRESSES

section. If you submit information via 

http://www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the Web site. If you submit a 

hardcopy that includes personal 

identifying information, you may 

request at the top of your document that 

we withhold this personal identifying 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. We will post all 

hardcopy submissions on http:// 

www.regulations.gov. 

Information and supporting 

documentation that we received and 

used in preparing this finding is 

available for you to review at http:// 

www.regulations.gov, or you may make 

an appointment during normal business 

hours at the U.S. Fish and Wildlife 

Service, Mississippi Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Background 

Section 4(b)(3)(A) of the Act (16 

U.S.C. 1533(b)(3)(A)) requires that we 

make a finding on whether a petition to 

list, delist, or reclassify a species 

presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

We are to base this finding on 

information provided in the petition, 

supporting information submitted with 

the petition, and information otherwise 

available in our files. To the maximum 

extent practicable, we are to make this 

finding within 90 days of our receipt of 

the petition and publish our notice of 

the finding promptly in the Federal 

Register. 

Our standard for substantial scientific 

or commercial information within the 

Code of Federal Regulations (CFR) with 

regard to a 90-day petition finding is 

‘‘that amount of information that would 

lead a reasonable person to believe that 

the measure proposed in the petition 

may be warranted’’ (50 CFR 424.14(b)). 

If we find that substantial scientific or 

commercial information was presented, 

we are required to promptly conduct a 

species status review, which we 

subsequently summarize in our 

12-month finding. 

The ‘‘substantial information’’ 

standard for a 90-day finding differs 

from the Act’s ‘‘best scientific and 

commercial data’’ standard that applies 

to a status review to determine whether 

a petitioned action is warranted. A 90- 

day finding does not constitute a status 

review under the Act. In a 12-month 

finding, we will determine whether a 

petitioned action is warranted after we 

have completed a thorough status 

review of the species, which is 

conducted following a substantial 90- 

day finding. Because the Act’s standards 

for 90-day and 12-month findings are 

different, as described above, a 

substantial 90-day finding does not 

mean that the 12-month finding will 

result in a warranted finding. 

Previous Federal Actions 

On November 29, 1977, we proposed 

to list the spring pygmy sunfish as 

endangered and to designate critical 

habitat (42 FR 60765). We withdrew the 

critical habitat portion of the proposal 

on March 6, 1979 (44 FR 12382). We 

then proposed critical habitat again for 

the species on July 27, 1979 (44 FR 

44418). On January 24, 1980, we 

withdrew the pending proposal to list 

the spring pygmy sunfish, along with 

the proposed critical habitat designation 

(effective November 29, 1979) (45 FR 

5782). 

The spring pygmy sunfish has been 

included in the following notices as a 

candidate species for listing: December 

30, 1982 (47 FR 58454); September 18, 

1985 (50 FR 37958); January 6, 1989 

(54 FR 554); and November 15, 1994 (59 

FR 58982). 

On February 28, 1996 (61 FR 7457), 

the Service published a notice of review 

in the Federal Register that removed the 

spring pygmy sunfish from the proposed 

candidate list because of recent 

discoveries (particularly of the Pryor 

Springs population). 


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Petition History 

On November 24, 2009, we received 

a petition dated November 24, 2009, 

from the Center for Biological Diversity 

(CBD) and Michael Sandel of the 

University of Alabama, requesting that 

we list the spring pygmy sunfish 

(Elassoma alabamae) as endangered 

under the Act. The petition clearly 

identified itself as such and included 

the requested identification information 

for the petitioners as required by 50 CFR 

424.14(a). In a December 17, 2009, 

letter, we informed the petitioners that 

we had reviewed the information 

presented in the petition, and outlined 

the petition process and timelines. In 

July 2010, we received letters from the 

North American Native Fishes 

Association (NANFA) and Dr. 

Stallsmith (University of Alabama at 

Huntsville) requesting that we 

emergency list the species under section 

4(b)(7) of the Act. Following review of 

the petition, the letters, and information 

in our files, we also determined that 

issuing an emergency regulation 

temporarily listing the species was not 

warranted. We notified NANFA and Dr. 

Stallsmith of our determination on July 

21, 2010. 

Species Information 

The spring pygmy sunfish (Elassoma 

alabamae) was discovered in 1938 but 

was not described until 1993 (Mayden 

1993, pp. 1–14). This species is the 

smallest member of the genus Elassoma. 

Males are normally smaller than 

females, and both sexes have 5 to 8 

broad, dark vertical bars separated by 

light-colored, narrow bars. Males are 

very dark to black with iridescent blue 

green color on their sides, cheeks, and 

gill covers (Boschung and Mayden 2004, 

pp. 614–615). 

The spring pygmy sunfish is a springassociated fish, endemic to the 

Tennessee River drainage in the Eastern 

Highland Rim physiographic province 

and Dissected Tablelands (Curtis et al. 

1913, p. 53) of Lauderdale and 

Limestone Counties in northern 

Alabama. The single remaining 

population of the spring pygmy sunfish 

currently occupies about 5 river miles 

(mi) (8.05 river kilometers (km)) of 

shallow, vegetated areas within four 

spring pools confluent with the upper 

Beaver Dam Spring Complex. These 

spring pools include Moss, Beaverdam, 

Thorsen, and Horton Springs, all in 

Limestone County, Alabama. The 

species is thought to be extirpated in 

Pryor Springs (also in Limestone 

County). 

The spring pygmy sunfish was 

initially discovered in Cave Springs 

(Lauderdale County) in 1938, and 

extirpated about a year later due to 

inundation from the formation of 

Pickwick Reservoir. In 1941, the species 

was discovered in Pryor Springs 

(Limestone County). A series of 

geomorphic and contamination events 

over 30 years is believed to have 

attributed to the demise of the species 

in Pryor Springs and throughout the 

species’ range—(Boschung and Mayden 

2004, pp. 614–615). There are few 

documented sampling efforts in Pryor 

Springs between 1966 and 1979. 

However, collection information from 

this time period indicates a declining 

and almost extinct population, nearing 

extirpation. By 1984, an effort to reestablish the population of spring 

pygmy sunfish included transplanting 

the species from Moss Spring into Pryor 

Springs (Mettee et al. 1986, pp. 14–15). 

Reintroduction efforts continued in 

1985 and 1987 (Mettee et al. 1986, 

pp. 6–7); however, by 2007, the species 

was believed extirpated from Pryor 

Springs due to impaired water quality 

and quantity problems, most likely 

attributable to agriculture (Sandel 2008, 

p. 2). 

The preferred habitat for the spring 

pygmy sunfish is clear and colorless to 

slightly stained spring water, spring 

runs, and associated spring-fed 

wetlands (Warren 2004, pp. 184–185). 

Spring pool habitats are typically static, 

persisting without disturbance for long 

periods. The spring pygmy sunfish is 

highly localized within these spring 

pools, being found in the water column 

associated with patches of specific 

submergent vegetation. Spring pygmy 

sunfishes are generally found at water 

depths from 5 to 40 inches (in) (12.7 cm 

to 101.6 centimeters (cm)) and rarely in 

the upper 5 in (12.7 cm) of the water 

column. Spring pygmy sunfish 

abundance is correlated with specific 

water quantity and quality parameters 

(i.e., water flow velocity, turbidity, 

anoxic (lack of oxygen) substratum, and 

water temperatures) and certain 

associated species such as amphipods, 

isopods, spring salamanders, crayfish, 

and snails (Sandel, pers. comm., 2007). 

The spring pygmy sunfish has high 

fecundity and quickly populates areas of 

available habitat (Sandel, pers. obs., 

2004 through 2009). Reproductively 

active adults occur from January to 

October. Spawning occurs in March and 

April, when water quality parameters 

are within a suitable range, such as a pH 

of 6.0 to 7.7 and water temperatures of 

57.2 to 68 degrees Fahrenheit (°F) (14 to 

20 degrees Celsius (°C)). Spring pygmy 

sunfish produce about 65 eggs, and 

hatching occurs from April to 

September (Sandel, pers. obs., 2004 

through 2009). 

The species is most abundant at the 

spring emergence, and exhibits 

metapopulation (a group of spatially 

separated populations of the same 

species that have some interaction) 

structure by occupying all suitable 

spring habitats where there is flowing 

spring water. This suggests that the 

population in the Beaverdam Creek 

system is a single, structured, 

continuous group of breeding 

individuals, genetically identifiable 

with limited gene flow from each 

springhead subpopulation (Sandel 2008, 

pp. 15–16). 

It is believed that migration between 

springheads is very important in 

maintaining genetic diversity of species 

within these small areas, although gene 

flow is limited. Even though individual 

subpopulations may be extirpated at 

times, due to drought or other ecological 

issues, the simultaneous loss of many 

subpopulations may cause extinction of 

the metapopulation. 

We accept the characterization of the 

spring pygmy sunfish as a valid species 

based on the taxonomic characters 

distinguishing the species from other 

members of the Elassoma genus 

(Mayden 1993, p. 4). 

Evaluation of Information for This 

Finding 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations at 50 

CFR 424 set forth the procedures for 

adding a species to, or removing a 

species from, the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants. A species may be 

determined to be an endangered or a 

threatened species due to one or more 

of the five factors described in section 

4(a)(1) of the Act: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

In making this 90-day finding, we 

evaluated whether information 

regarding threats to the spring pygmy 

sunfish, presented in the petition and 

available in our files, is substantial, 

thereby indicating that the petitioned 

action may be warranted. Our 

evaluation of this information is 

presented below. 


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A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Information Provided in the Petition 

The petition states that decreased 

water quantity has degraded the spring 

pygmy sunfish’s habitat (Warren et al. 

2000; Warren 2004; Boschung and 

Mayden 2004) (cited in petition). 

Specifically, water from the aquifer of 

the Eastern Highland Rim located 

within the Tennessee River Catchment 

containing the entire Beaverdam Creek 

watershed is being withdrawn daily by 

the city of Huntsville and adjacent rural 

residents at a volume of 40 million 

gallons per day (MGD) (Compiled from 

NAWQA 2001, 2009; Sandel, pers. com, 

2007). 

The petition states that this water 

withdrawal quantity is at least three 

times greater than the withdrawal 

volumes from the eight surrounding 

watersheds that remove at least 12 

MGD. Groundwater extraction by 

agriculture from the springs (Thorsen 

Spring, Horton Spring, and Pryor 

Branch/Spring systems), with five diesel 

irrigation pumps operating 

simultaneously, withdraws 8,000 to 

16,000 gallons per minute during 

drought conditions. In 2007, water from 

Thorsen Spring was extracted to a level 

that destroyed existing vegetation and 

decreased the abundance of the spring 

pygmy sunfish abundance by 99 percent 

(Sandel, pers. obs., 2004 through 2007). 

Chronic regional drought between 2000 

and 2005 reduced rates of surface water 

flow and aquifer recharge. Desiccation 

of aquatic vegetation by water removal 

(pumping) within Thorsen, Horton, and 

Pryor Springs negatively impacted the 

vegetation of the spring pygmy sunfish’s 

habitat (Jandebeur 1979; Mayden 1993; 

as cited in the petition). 

The petition states that declining 

water quality is a major threat to the 

spring pygmy sunfish due to the use of 

fertilizers and other agricultural 

chemicals within the Beaverdam Creek 

watershed. According to the petition, 

the watershed contains about 14,016 

acres (5672.28 ha) of row cropland that 

uses fertilizers and other chemicals, 

which is eventually transported at a 

runoff rate exceeding 25 MGD 

throughout the tributaries of the 

watershed. 

The petition states that removal of 

aquatic and riparian vegetation due to 

herbicide application is a major threat to 

the spring pygmy sunfish. Herbicide 

application and other methods of 

aquatic vegetation removal within 

Thorsen Spring, Horton Spring, and 

Pryor Branch/Spring systems have 

impacted the species’ habitat (Jandebeur 

1979; Mayden 1993) (cited in petition). 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

Data from our files support the 

petition’s assertion that diminishing 

water quantity has the potential to be a 

significant threat to the spring pygmy 

sunfish. Increased urbanization within 

the entire Eastern Highland Rim 

topographic area (Woodside et al. 2001, 

p. 6) has increased water quantity usage 

throughout the Tennessee Valley Basin. 

Demand for water is correlated to 

projected population levels in 

Limestone and Lauderdale Counties. By 

2015, the population in these counties 

is projected to increase dramatically 

(Roop 2010). Growing populations 

correspondingly increase demand for 

surface and ground water extraction 

within the Eastern Highland Rim. 

Currently about 40 percent of the public 

water supply for the City of Huntsville 

is withdrawn from the Tennessee River 

and 40 percent from groundwater (Hoos 

et al. 2001, p. 1; Kingsbury 2003, p. 2). 

The information in our files regarding 

groundwater extraction for Lauderdale 

and Limestone Counties is limited to 

general watershed and county-level data 

(USGS 2009a; USGS 2009b; Hutson et 

al. 2005, pp. 1–2). The petition only 

estimates the potential of eight pumps 

operating simultaneously within the 

spring pygmy sunfish’s sites. 

Information in our files, along with field 

observations (Drennen, pers. obs., 2007 

through 2009), supports the petition’s 

claim that water is being withdrawn 

from spring pygmy sunfish habitat for 

irrigation. However, the specific water 

quantity removed from these sites and 

the impact that this removal has on the 

spring pygmy sunfish is not 

substantiated, and we do not have 

supporting information within our files. 

Declining water quality information 

presented in the petition for the Eastern 

Highland Rim, in general, is supported 

by information found in our files. 

Specific site threats to the spring pygmy 

sunfish mentioned in the petition, such 

as excessive sediment, decreasing water 

clarity, decreasing spawning and 

feeding sites, reduction of light, and the 

use of fertilizers and pesticides, were 

identified by the petition as impacting 

the broad topographic region that 

includes the limited sites occupied by 

the spring pygmy sunfish. However, the 

significance of this general threat to the 

spring pygmy sunfish is unknown. 

Information in our files supports the 

petition’s assertion that decreased water 

quality may be a threat to the spring 

pygmy sunfish. 

Information in the petition and in our 

files indicates that, since 1945, various 

techniques for removing or limiting 

aquatic vegetation, such as herbicides, 

cattle grazing, and irrigation, have 

occurred within the spring systems and 

waterways throughout the habitat of the 

spring pygmy sunfish (Jandebeur 1979, 

pp. 4–8). The information in our files 

also supports the statement in the 

petition that manipulation and control 

of aquatic vegetation in the spring 

systems may be a threat to the spring 

pygmy sunfish. 

In summary, we find that the 

information provided in the petition, as 

well as other information in our files, 

presents substantial information 

indicating that the petitioned action 

may be warranted due to the present or 

threatened destruction, modification, or 

curtailment of the species’ habitat or 

range, specifically because of declining 

water quantity and quality and loss of 

aquatic vegetation. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes. 

Information Provided in the Petition 

The petition states that overutilization 

has not been implicated in the decline 

of this species because monthly surveys 

over the last 5 years for scientific 

evaluation were nonlethal. Previous 

lethal sampling of the spring pygmy 

sunfish within the various sites across 

the species’ range for genetic work never 

constituted more than 10 percent of the 

total individuals collected per sampling 

event. The petition states that there is 

no evidence to suggest over-exploitation 

as a cause for the decline of the spring 

pygmy sunfish. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

There is no evidence provided by the 

petition, or within our files, to support 

threats under this factor. Therefore, we 

find that the information provided in 

the petition, as well as other 

information in our files, does not 

indicate or document that 

overutilization for commercial, 

recreational, scientific or educational 

purposes poses a threat to the species. 

However, we will evaluate all factors, 

including overutilization for 

commercial, recreational, scientific, or 

educational purposes, when we conduct 

the status review. 

C. Disease or Predation 

Information Provided in the Petition 

The petition states that there is no 

evidence to suggest that disease is a 


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cause for the decline of the spring 

pygmy sunfish. However, the petition 

does state that chain pickerel (Esox 

nigra) prey on the spring pygmy sunfish 

(Jandebeur 1997, cited in petition), and 

that other types of pygmy sunfish 

species in different localities have been 

found in the gut contents of piscivorous 

(fish-eating) fishes (Walsh and Burr 

1984, cited in petition). The petition 

states that invasive species, such as 

predators like pirate perch 

(Aphredoderus sayanus) and grass 

pickerel (Esox americanus), and 

potential competitors such as the flier 

(Centrarchus macropterus) and bantam 

sunfish (Lepomis symmetricus), threaten 

the spring pygmy sunfish. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

The information in our files supports 

the assertion in the petition that disease 

is not a threat to the spring pygmy 

sunfish. Predation does pose a potential 

threat to the spring pygmy sunfish. 

In summary, we find that neither the 

information in the petition, nor other 

information in our files, indicates that 

disease is a threat to the spring pygmy 

sunfish. However, we find that the 

information provided in the petition, as 

well as other information in our files, 

suggests that predation by natural or 

invasive species may pose a threat to the 

spring pygmy sunfish. We will evaluate 

all factors, including disease and 

predation, when we conduct the status 

review. 

D. The Inadequacy of Existing 

Regulatory Mechanisms 

Information Provided in the Petition 

The petition states that the spring 

pygmy sunfish is not formally 

recognized or protected at any 

government level. Current State and 

Federal laws and regulations involving 

alteration of wetlands; channelization; 

water withdrawal; pesticide use and 

other agriculture best management 

practices; and buffer zones to protect 

water quality and quantity within spring 

systems are available, but these do not 

prohibit destroying the spring pygmy 

sunfish or its habitat. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

The spring pygmy sunfish and its 

habitat are afforded some protection 

from water quality and habitat 

degradation under the Clean Water Act 

of 1977 (33 U.S.C. 1251 et seq.) and the 

Alabama Water Pollution Control Law 

(Code of Alabama, sections 22–22–1 et 

seq., and regulations promulgated 

thereunder by the Alabama Department 

of Environmental Management) 

(Maynard and Gale. 1995, pp. 20–28). 

While these laws have resulted in some 

improvement in water quality and 

stream habitat for aquatic life, including 

the spring pygmy sunfish, such as 

requiring landowners engaged in 

agricultural practices to have an erosion 

prevention component within their farm 

plan, they alone have not been fully 

adequate to protect this species due to 

inconsistent implementation, 

monitoring, and enforcement. 

Furthermore, habitat degradation is 

ongoing despite the protection afforded 

by these laws. 

The State of Alabama maintains 

water-use classifications through 

issuance of National Pollutant Discharge 

Elimination System (NPDES) permits to 

industries, municipalities, and others 

that set maximum limits on certain 

pollutants or pollutant parameters. For 

water bodies on the Clean Water Act’s 

Section 303(d) List of Impaired Water 

Bodies, States are required under the 

Clean Water Act to establish a Total 

Maximum Daily Load (TMDL) for the 

pollutants of concern that will bring 

water quality into the applicable 

standard. Many of the water bodies that 

do not meet Clean Water Act standards 

are within the occupied range of the 

spring pygmy sunfish (Alabama 2008 

Section 303(d) List of Impaired Water 

Bodies). 

The State of Alabama’s water quality 

standards, adopted from the national 

standards set by the U.S. Environmental 

Protection Agency (USEPA), appear to 

be protective of the spring pygmy 

sunfish as long as discharges are within 

permitted limits and are enforced 

according to the provisions of the Clean 

Water Act. These water quality 

requirements were established with the 

intent to protect all aquatic resources 

within the State of Alabama and are 

presumed to be protective of the spring 

pygmy sunfish. The Service is currently 

in consultation with the USEPA to 

evaluate the efficacy of criteria 

approved in USEPA’s water quality 

standards for endangered and 

threatened species and their critical 

habitats as described in the 

Memorandum of Agreement our 

agencies signed in 2001 (66 FR 11201; 

February 22, 2001). Because the spring 

pygmy sunfish is not currently a 

federally listed species, it is not 

specifically considered in the ongoing 

consultation with USEPA. 

Water extraction has also been 

identified as a potential threat to the 

species (see Factor A above). There are 

few, if any, State and Federal 

regulations pertaining to ground water 

extraction and protection of aquifer 

recharge areas. 

In summary, the petition’s claim that 

there are no existing regulatory 

mechanisms that protect the spring 

pygmy sunfish or its habitat from 

destruction is not supported by the 

information in our files. However, the 

information in our files indicates that 

degradation of habitat for this species is 

ongoing despite the protections afforded 

by these existing laws. Therefore, the 

information in the petition and in our 

files presents substantial information 

indicating that the petitioned action 

may be warranted due to the inadequacy 

of existing regulatory mechanisms, 

particularly those affording protection 

from habitat destruction or degradation. 

E. Other Natural or Manmade Factors 

Affecting Its Continued Existence 

Information Provided in the Petition 

The petition states that the Beaverdam 

Creek metapopulation is considered a 

single, semi-continuous group of 

subpopulations (Sandel, pers. comm., 

2007; Sandel 2008, pp. 13–14), and that 

impediments to migration and gene flow 

between springheads are detrimental to 

maintaining genetic diversity in the 

species. Individuals from each site are 

genetically identifiable in a structured 

population, with limited, but regular, 

gene flow. The genetic viability of 

subpopulations is interdependent. 

Subpopulations may be naturally 

extirpated at times, and the 

simultaneous loss of many 

subpopulations may cause the 

metapopulation to become extinct. The 

petition states that inbreeding is a 

potential factor in the decline of the 

spring pygmy sunfish in Pryor Springs 

due to the reintroduction of too few 

individuals (Mettee et al. 1986; Sandel 

2008) (as cited in petition). 

The petition states that if Asian silver 

and bighead carps (Hypopthalmichthys 

spp.) are introduced or expand their 

range from their present locality in the 

lower Tennessee River and Wheeler 

Reservoir systems, they may disturb the 

Beaverdam Creek plankton ecosystem 

by consuming significant proportions of 

plankton. The petition also states that 

invasive plant species, such as floating 

Amazonian parrot feather 

(Myriophyllum aquaticum) and water 

hyacinth (Eichhornia sp.), and the 

submerged aquatic vegetation 

Myriophyllum verticillatum and 

Ceratophyllum echinatum, threaten the 

Beaverdam Creek ecosystem by 

competitively excluding native 

vegetation and storing important 

nutrients within their aerial stems and 


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Federal Register / Vol. 76, No. 63 / Friday, April 1, 2011 / Proposed Rules 18143 

leaves, resulting in little nutrition or 

cover for the food base of the species (no 

reference cited in the petition). 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

Data from our files support the 

petition’s assertion that impediments to 

migration and gene flow between 

springheads are detrimental to 

maintaining genetic diversity in the 

species, and therefore may be a 

significant threat to the spring pygmy 

sunfish. 

Mechanical fragmentation of the 

species’ habitat into smaller, isolated 

subpopulations has transpired due to 

localized environmental degradation 

from agriculture, increased 

urbanization, and other anthropogenic 

disturbances of the spring systems 

throughout the watersheds of the 

Eastern Highland Rim (Sandel 2008, 

pp. 2–4, 13). This fragmentation of the 

spring pygmy sunfish’s habitat has the 

potential to impose negative selective 

pressures on the species’ populations, 

including genetic isolation; reduction of 

space for rearing, recruitment, and 

reproduction; reduction of adaptive 

capabilities and increased likelihood of 

local extinctions (Burkhead et al. 1997, 

pp. 397–399). Connectivity of these 

fragmented habitats as a whole allows 

improvement in water quality by 

flushing and diluting possible 

pollutants and in water quantity by 

linking the water bodies together. 

Connectivity also maintains flow 

between the existing occupied habitat 

and unoccupied habitat, which, in turn, 

allows for the potential of colonization 

of these unoccupied habitat areas when 

conditions become favorable for the 

species. In addition, the connectivity 

also maintains heterozygosity (genetic 

diversity), or gene flow between the 

populations of the species, and reduces 

inbreeding, thereby maintaining the 

integrity of the population (Hallerman 

2003, pp. 363–364). 

However, we find that the information 

provided in the petition and in our files 

does not support the claim that Asian 

silver and bighead carps, or invasive 

plant species, pose a threat to the spring 

pygmy sunfish at this time. 

In summary, we find the information 

provided in the petition, as well as other 

information in our files, concerning 

habitat fragmentation and its resulting 

effects on gene flow and potential 

demographic impacts within the 

population is substantial, indicating that 

the petitioned action may be warranted 

due to other natural or manmade factors 

affecting the spring pygmy sunfish’s 

continued existence. 

Finding 

On the basis of our review under 

section 4(b)(3)(A) of the Act, we have 

determined that the petition presents 

substantial scientific or commercial 

information indicating that listing the 

spring pygmy sunfish throughout its 

entire range may be warranted. This 

finding is based on information 

provided under Factors A, C, D and E. 

In considering what factors might 

constitute threats, we must look beyond 

the mere exposure of the species to the 

factor to determine whether the species 

responds to the factor in a way that 

causes actual impacts to the species. If 

there is exposure to a factor, but no 

response, or only a positive response, 

that factor is not a threat. If there is 

exposure and the species responds 

negatively, the factor may be a threat 

and we then attempt to determine how 

significant a threat it is. If the threat is 

significant, it may drive or contribute to 

the risk of extinction of the species such 

that the species may warrant listing as 

endangered or threatened as those terms 

are defined by the Act. This does not 

necessarily require empirical proof of a 

threat. The combination of exposure and 

some corroborating evidence of how the 

species is likely impacted could suffice. 

The mere identification of factors that 

could impact a species negatively may 

not be sufficient to compel a finding 

that listing may be warranted. The 

information should contain evidence 

sufficient to suggest that these factors 

may be operative threats that act on the 

species to the point that the species may 

meet the definition of endangered or 

threatened under the Act. 

Because we have found that the 

petition presents substantial 

information indicating that listing may 

be warranted, we are initiating a status 

review to determine whether listing the 

spring pygmy sunfish under the Act is 

warranted. 

References Cited 

A complete list of references cited is 

available on the Internet at http:// 

www.regulations.gov and upon request 

from the Mississippi Ecological Services 

Field Office, 6578 Dogwood View 

Parkway, Jackson, MS 39213. 

Authors 

The primary author of this notice is 

Daniel J. Drennen of the Mississippi 

Ecological Services Field Office, 

Jackson, MS (see FOR FURTHER

INFORMATION CONTACT). 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: March 16, 2011. 

Rowan W. Gould, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2011–7691 Filed 3–31–11; 8:45 am] 

BILLING CODE 4310–55–P 


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