Endangered and Threatened Wildlife and Plants; Final Rule To Designate Critical Habitat for the Buena Vista Lake Shrew (Sorex ornatus relictus, 3438-3461 [05-982]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 14 (Monday, January 24, 2005)]
[Rules and Regulations]
[Pages 3438-3461]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-982]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Rule To Designate 
Critical Habitat for the Buena Vista Lake Shrew (Sorex ornatus 
relictus); Final Rule

Federal Register / Vol. 70, No. 14 / Monday, January 24, 2005 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT66


Endangered and Threatened Wildlife and Plants; Final Rule To 
Designate Critical Habitat for the Buena Vista Lake Shrew (Sorex 
ornatus relictus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Buena Vista Lake shrew (Sorex ornatus 
relictus) (referred to here as the shrew) pursuant to the Endangered 
Species Act of 1973, as amended (Act). In total, approximately 84 acres 
(ac) (34 hectares (ha)) occur within the boundaries of the critical 
habitat designation. The critical habitat is located in the Central 
Valley floor of Kern County, California.

DATES: This final rule is effective February 23, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Sacramento Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2800 Cottage Way, W-2605, Sacramento, California 
95825 (telephone 916-414-6600).

FOR FURTHER INFORMATION CONTACT: Shannon Holbrook or Arnold Roessler, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605 
Sacramento, California, (telephone 916-414-6600; facsimile 916-414-
6712).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to the Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 468 species or 37 percent 
of the 1,256 listed species in the United States under our jurisdiction 
have designated critical habitat. We address the habitat needs of all 
1,256 listed species through conservation mechanisms such as listing, 
section 7 consultations, the Section 4 recovery planning process, the 
Section 9 protective prohibitions of unauthorized take, Section 6 
funding to the States, and the Section 10 incidental take permit 
process. We believe that it is these measures that may make the 
difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result of 
this consequence, listing petition responses, the Service's own 
proposals to list critically imperiled species and final listing 
determinations on existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This situation in turn fosters a second round of litigation in which 
those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
is very expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs associated with the critical habitat designation process 
include legal costs, the costs of preparation and publication of the 
designation, the analysis of the economic effects and the costs of 
requesting and responding to public comments, and, in some cases, the 
costs of compliance with National Environmental Policy Act. None of 
these costs result in any benefit to the species that is not already 
afforded by the protections of the Act enumerated earlier, and these 
associated costs directly reduce the scarce funds available for direct 
and tangible conservation actions.

Background

    For background information, please see the proposed designation of 
critical habitat for the Buena Vista Lake shrew published on August 19, 
2004 (69 FR 51417). That information is incorporated by reference into 
this final rule.

Previous Federal Actions

    A final rule listing the shrew as endangered was published in the 
Federal Register on March 6, 2002 (67 FR 10101). Please refer to the 
final rule listing the shrew for information on previous Federal 
actions prior to March 6, 2002. On January 12, 2004, the United States 
District Court for the Eastern District of California issued a 
Memorandum Opinion and Order (Kern County Farm Bureau et al. v. Anne

[[Page 3439]]

Badgley, Regional Director of the United States Fish and Wildlife 
Service, Region 1 et al., CV F 02-5376 AWIDLB). The order required the 
Service to publish a proposed critical habitat determination (also 
known as a proposed rule) for the shrew no later than July 12, 2004, 
and a final determination no later than January 12, 2005. On July 8, 
2004, the court extended the deadline for submitting the proposed rule 
to the Federal Register to August 13, 2004.
    On August 19, 2004 (69 FR 51417), we published a proposed critical 
habitat designation for the Buena Vista Lake shrew. Publication of this 
proposed rule opened a 60-day public comment period, which closed on 
October 18, 2004. On September 16, 2004, we announced via local news 
media and publications that a public hearing was to be held on 
September 30, 2004, in Bakersfield, California. At the public hearing, 
approximately 10 members of the public provided or presented 
information and comments on the proposed critical habitat designation. 
On November 30, 2004, we published a notice announcing the availability 
of our draft economic analysis (DEA) of the proposed critical habitat 
designation (69 FR 69578). The notice opened a 15-day public comment 
period on the DEA, extended the comment period on the proposed critical 
habitat designation, and closed on December 15, 2004.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment on the proposed critical habitat designation for the Buena 
Vista Lake shrew. In addition, we invited public comment through the 
publication of a notice in the Bakersfield Californian on September 16, 
2004.
    In the August 19, 2004, proposed critical habitat designation (69 
FR 51417), we requested that all interested parties submit comments on 
the specifics of the proposal, including information related to the 
critical habitat designation, unit boundaries, species occurrence 
information and distribution, land use designations that may affect 
critical habitat, potential economic effects of the proposed 
designation, benefits associated with the critical habitat designation, 
potential exclusions and the associated rationale for the exclusions, 
and methods used to designate critical habitat. We also contacted all 
appropriate Federal, State, and local agencies, scientific 
organizations, and other interested parties and invited them to 
comment. This was accomplished through letters and news releases mailed 
to affected elected officials, media outlets, local jurisdictions, 
interest groups, and other interested individuals. In addition, we 
invited public comment through the publication of legal notices in 
newspapers throughout Kern County.
    We provided notification of the draft economic analysis (DEA) 
through postcards, letters, and news releases faxed and/or mailed to 
affected elected officials, media outlets, local jurisdictions, and 
interest groups. We published a notice of its availability in the 
Federal Register and made the DEA and associated material available on 
our Sacramento Fish and Wildlife Office Internet site on November 30, 
2004 (69 FR 69578).
    We received a total of 16 comment letters and electronic mail 
correspondences (e-mails) during the comment periods. We reviewed all 
comments received for substantive issues and new information regarding 
the Buena Vista Lake shrew. We grouped similar public comments into six 
general issue categories relating specifically to the proposed critical 
habitat determination and/or the DEA. Substantive comments and 
accompanying information have either been incorporated directly into 
the final rule or final economic analysis documents, and/or they have 
been addressed in the following summary.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we solicited review from at 
least three appropriate and independent specialists/experts regarding 
the proposed rule. The purpose of such review is to ensure that our 
critical habitat designation is based on scientifically sound data, 
assumptions, and analyses.
    We solicited peer review from 5 individuals who have detailed 
knowledge of and expertise in either mammalian biology in general, or 
shrew biology specifically, as well as scientific principles and 
conservation biology. The individuals were asked to review and comment 
on the specific assumptions and conclusions regarding the proposed 
designation of critical habitat. Two of the five reviewers submitted 
comments on the proposed designation.
    Peer Comment (1): One peer reviewer felt the proposed critical 
habitat designation incorporated the most up to date information on the 
biology of the shrew and the issues of range, distribution, and life 
history requirements of the shrew. This peer reviewer questioned 
whether connectivity of habitat fragments had been considered in 
preparation of the proposed rule. Both reviewers stated that shrews, 
that were possibly the Buena Vista Lake shrew, have been captured at 
the Atwell Island Land Retirement Demonstration project site: both 
reviewers questioned why this area was not included in the proposed 
critical habitat designation.
    Our Response (1): Although we agree that preserving connectivity 
between known occupied locations is important for the conservation of 
the Buena Vista Lake shrew, we do not believe that unoccupied and 
historical locations are essential for the conservation of the species. 
The Recovery Plan for Upland Species of the San Joaquin Valley 
(Recovery Plan) determined that the Buena Vista Lake shrew could be 
conserved by protection of habitat in three or more disjunct occupied 
conservation areas, excluding unoccupied and/or historical locations. 
All units that were described in the Recovery Plan were analyzed to 
determine if the areas exhibited the physical and biological features 
that are essential to the conservation of the shrew and would require 
special management. We have determined that the areas or units that we 
have proposed to designate as critical habitat, based on our analysis 
of the best available scientific and commercial data, provide for the 
essential lifecycle needs of the species, and provide the habitat 
components essential for the conservation of this species (i.e., the 
primary constituent elements (PCEs) described below in the Primary 
Constituent Elements section). Therefore, we do not believe that it is 
necessary for the conservation of the Buena Vista Lake shrew to 
designate critical habitat in unoccupied areas or areas that do not 
exhibit the primary constituent elements essential for the conservation 
of the species.

State and Federal Agency or Tribal Comments

    We did not receive any comments regarding the proposed critical 
habitat designation from any State, Federal or Tribal entity.

Other Public Comments and Responses

    We address other substantive comments and accompanying information 
in the following summary. Any changes and/or reference updates 
suggested by commenters have been incorporated into this final rule or 
the final economic analysis, as appropriate.

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Issue 1--Habitat- and Species-Specific Information

    Comment (1): Several commenters stated that we have not adequately 
established that all the areas identified as critical habitat do in 
fact contain the Primary Constituent Elements (PCEs) essential for the 
conservation of the species and that the proposed designation fails to 
narrowly define those areas that have the PCEs. These commenters also 
stated they wanted excluded from designation those areas that did not 
contain the PCEs for the shrew. These comments were directed towards 
roads, pump sites, maintained canals, and other areas devoid of 
vegetation within the designation. One commenter expressed concern that 
there was no comprehensive biological study utilizing uniform 
assumptions of analysis for all five units.
    Our Response (1): We used the best scientific and commercial data 
available to us at the time in determining which areas proposed as 
critical habitat are essential for the shrew. In our final 
determination, we used additional information available to us, 
including detailed aerial imagery and other information provided by 
commenters to assist us in refining our mapping of essential habitat. 
After refining our proposal by removing additional nonhabitat and other 
nonessential areas such as roads, pump sites, maintained canals, and 
other areas devoid of vegetation, and considering the best available 
information, we conclude that the areas designated by this final rule, 
including currently occupied areas, are essential for the conservation 
of the species. In our development of the proposed designation, we 
utilized certain specific conservation criteria of protecting a variety 
of habitats, protecting suitable habitat across the range of the 
species, and protecting habitats essential for the maintenance and 
growth of self-sustaining populations in establishing the areas of 
critical habitat. This strategy was also used in the development of the 
final designation.
    Comment (2): One commenter suggested that there would be an 
increase in siltation and debris accumulation in channels and that this 
would increase maintenance burdens of water districts if there was a 
restriction in channel use due to the critical habitat designation.
    Our Response (2): In our final determination, we have additional 
information available to us, including detailed aerial imagery and 
other information provided by commenters to assist us in refining our 
mapping of essential habitat. We have determined that channels, because 
they lack the PCEs, do not provide habitat for the shrews. Therefore, 
channel areas have been removed from the critical habitat boundaries. 
Therefore, no restrictions of use or modifications to channel 
operations will be imposed due to critical habitat designation.
    Comment (3): One commenter stated that the final rule should 
recognize all cumulative impacts to the shrew occurring in the area.
    Our Response (3): In accordance with Section 4(b) of the Endangered 
Species Act, the regulations state that the Secretary shall determine 
whether a species is an endangered species or a threatened species 
because of any of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range, (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes, (3) disease or predation, (4) the inadequacy of 
existing regulatory mechanisms, and (5) other natural or manmade 
factors affecting its continued existence. As a result of this 
analysis, the Buena Vista Lake shrew was listed as endangered on March 
6, 2002 (67 FR 10101). The recognition of ``cumulative impacts'' or 
threats is part of the process of listing a species and not part of the 
designation of critical habitat.
    Comment (4): One commenter stated that the final rule should 
reflect a commitment to monitoring or improved data collection for the 
threat of selenium contamination.
    Our Response (4): Critical habitat identifies those areas which 
contain the physical and biological features that are essential to the 
conservation of the species and those areas that may require special 
management considerations or protections. Critical habitat designation 
is not intended to be a management plan for a specific area. Any 
monitoring or special management actions can be developed through 
consultation or management agreements through partnerships with 
Federal, State, local or private groups.

Issue 2--Costs and Regulatory Burden

    Comment (5): Several commenters stated that the Service needs to 
clarify the proposed rule to allow the public to understand what 
activities will be limited at each proposed unit. These commenters 
expressed concern that critical habitat designation would limit their 
land use practices. Specifically, several commenters stated concern 
over West Nile virus and whether mosquito abatement procedures would be 
allowed in areas and boundaries of those areas designated as critical 
habitat. Several commenters were concerned over ability of the city to 
provide adequate drinking water supplies if groundwater recharge 
practices were restricted. Several commenters were concerned that 
critical habitat designation will adversely affect farming operations, 
interrupt water supplies, and cause degradation of surrounding 
farmland. One commenter states that critical habitat designation has 
potential to adversely affect water management activities such as 
irrigation, municipal purposes, and flood management. One commenter 
asks if critical habitat will affect how the County administers FEMA 
regulations.
    Our Response (5): All Federal agencies are required to evaluate 
whether projects they authorize, fund, or carry out may adversely 
affect a federally listed species and/or its designated critical 
habitat. If projects with a federal nexus are not likely to adversely 
affect critical habitat, then a consultation with us would not be 
necessary. For projects that are likely to have only discountable, 
insignificant, or wholly beneficial effects on critical habitat, we 
would concur in writing and no further consultation will be necessary. 
For projects likely to have adverse affects on critical habitat, formal 
consultation would be required pursuant to Section 7 of the Act.
    Only those activities federally funded or authorized that may 
affect critical habitat would be subject to the regulations pertaining 
to critical habitat. Since all of the Buena Vista Lake shrew habitat 
within the designation is occupied by the listed Buena Vista Lake shrew 
and occurs on privately owned lands, the designation of critical 
habitat is not likely to result in a significant increase in regulatory 
requirements above those already in place due to the presence of the 
listed species.
    Buena Vista Lake shrews have been found within areas of proposed 
critical habitat where these intricate water banking and management 
operations are in place. We recognize and acknowledge that certain 
water banking and water management practices likely have no impacts on 
the Buena Vista Lake shrew and may in fact be beneficial for 
maintaining them.
    While the designation of critical habitat does not constitute a 
regulation on private lands, the Federal listing of the Buena Vista 
Lake shrew under the Endangered Species Act may affect private 
landowners. Private actions which could result in take of Buena Vista 
Lake shrew (e.g., ground disturbing activities) require an exemption 
from take following consultation under Section 7 or an

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incidental take permit under section 10 of the Act. Because the Buena 
Vista Lake shrew was listed in 2002, proposed actions on private lands 
that require Federal authorization or funding that may affect the 
species already undergo consultation under Section 7 to ensure that 
their actions are not likely to jeopardize the continued existence of 
the species. Future consultations involving private lands will also 
analyze the effect of the proposed action on designated critical 
habitat.
    The Act also requires recovery planning for listed species. 
Recovery planning for Buena Vista Lake shrew may include 
recommendations for land acquisition or easements involving private 
landowners. These efforts would be undertaken with the cooperation of 
the landowners. We also work with landowners to identify activities and 
modifications to activities that will not result in take, to develop 
measures to minimize the potential for take, and to provide 
authorizations for take through section 7 and 10 of the Act. We 
encourage landowners to work in partnership with us to develop plans 
for ensuring that land uses can be carried out in a manner consistent 
with the conservation of listed species.
    Comment (6): One commenter stated there would be economic impacts 
if water deliveries to Buena Vista Lake Recreation Area were altered. 
One commenter feels that critical habitat will cause substantial 
financial burden if changes in structures or abilities to manage for 
irrigation and floodwater or banking operations are required. One 
commenter stated that the Critical habitat designation should be 
limited to those areas that are already reserved for habitat purposes 
to minimize economic impact. One commenter stated that the Service must 
quantify economic impacts and consider cumulative impacts of the 
proposed rule.
    Our Response (6): We made a draft economic analysis (DEA) available 
for public comment for the Buena Vista Lake shrew on November 30, 2004, 
and accepted comments on the DEA from that date through December 15, 
2004 (69 FR 69578). These comments will be considered in the final EA.
    We did not propose to designate as critical habitat the Buena Vista 
Lake Recreation Area. Furthermore, based on our economic analysis, we 
do not anticipate a substantial financial burden in the area that we 
are designating. The annualized economic effects of this designation 
are estimated to be $8,752 to $12,932, based on the economic analysis 
for Kern Lake only, as all the other units were excluded from 
designation.
    Comment (7): Several commenters stated that there should be 
allowances for continued operation, maintenance, repair, and 
replacement of existing facilities.
    Our Response (7): Critical habitat designations do not prevent the 
normal operation, maintenance, repair, or replacement of existing 
facilities. However, any action that would result in the take of a 
federally listed species (e.g., ground disturbing activities), would 
require a Federal permit under section 7 or section 10 of the Act. 
Consultation on critical habitat is only triggered when there is a 
Federal nexus (action carried out, funded, or authorized by a Federal 
agency). Even if there is a Federal nexus, consultation would not be 
triggered unless the PCEs are present in the action area. Where 
possible, existing facilities, such as the ones referred to in the 
comment, have been excluded from critical habitat designation. Due to 
the mapping scale utilized in the rule, it was not possible to remove 
all areas that do not exhibit the PCEs for the species. Nonetheless, 
critical habitat does not include man-made structures and not 
containing one or more of the PCEs, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located. 
If these areas do not exhibit the PCEs, and/or there is no Federal 
nexus, the owners of the facilities would not have regulatory 
responsibilities due to critical habitat.

Issue 3--Property Rights

    Comment (8): Several commenters were concerned that designation of 
critical habitat would affect flood control and water supply to 
Bakersfield and surrounding communities. They stated the designation 
could adversely affect agricultural production and urban water 
districts if water deliveries are restricted or restrictive management 
practices are imposed.
    Our Response (8): Critical habitat designations do not constitute a 
burden in terms of Federal laws and regulations on private landowners 
carrying out privately funded activities. Unless a Federal nexus exists 
for a project proposed on private property, the critical habitat 
designation poses no regulatory burden for private landowners and 
similarly should not interfere with future land use plans. Therefore, 
we do not believe that this designation will deny ranchers and farmers 
use of their land. We have also determined that channels such as water 
delivery canals do not provide habitat for the shrews due to lack of 
the primary constituent elements, and we have removed them from the 
critical habitat boundaries. Therefore, we do not anticipate 
restrictions of use or modifications to water deliveries to be imposed 
due to critical habitat designation.
    While the designation of critical habitat does not typically result 
in regulation on private lands, the Federal listing of the Buena Vista 
Lake shrew under the Endangered Species Act may affect private 
landowners. Actions which could result in take of Buena Vista Lake 
shrew (e.g., ground disturbing activities) require a Federal permit 
under section 7 or section 10 of the Act. Because the Buena Vista Lake 
shrew was listed in 2002, Federal agencies already consult with us on 
activities in areas currently occupied by the species or, if the 
species may be affected by an action, to ensure that their action does 
not jeopardize the continued existence of the species.
    Comment (9): One commenter asks if restrictive critical habitat 
management practices imposed on federal agencies or private property 
owners seeking federal permits increase mitigation costs, property 
damage, or raise public safety issues involving the maintenance of 
flood-carrying capacity for the affected water conveyance facilities.
    Our Response (9): Critical habitat identifies those areas which 
contain the physical and biological features that are essential to the 
conservation of the species and those areas that may require special 
management considerations or protections. Critical habitat designation 
is not intended to be a management plan for a specific area. Any 
monitoring or special management practices can be developed through 
Section 7 or Section 10 of the Act. Based on previous consultations, 
there have been no restrictive management practices required that have 
resulted in increased mitigation costs, property damage, or have raised 
public safety issues. Nor do we anticipate, based on the economic 
analysis, in the future restrictive management practices that will 
increase mitigation costs, property damage or public safety issues.
    Comment (10): Several commenters stated that areas that are subject 
to a management regime that supports the shrew should be excluded from 
designation.
    Our Response (10): We exclude areas with management regimes from 
designation if a current plan provides adequate management or 
protection and meets three criteria: (1) The plan is complete and 
provides a conservation benefit to the species (i.e., the plan must 
maintain or provide for an increase in the species' population, or the 
enhancement or restoration of its habitat

[[Page 3442]]

within the area covered by the plan); (2) the plan provides assurances 
that the conservation management strategies and actions will be 
implemented (i.e., those responsible for implementing the plan are 
capable of accomplishing the objectives, have an implementation 
schedule, and adequate funding for implementing the management plan); 
and (3) the plan provides assurances that the conservation strategies 
and measures will be effective (i.e., it identifies biological goals, 
has provisions for monitoring and reporting progress, and is of a 
duration sufficient to substantially implement the plan and achieve the 
plan's goals and objectives). Units containing a management plan or 
regime that meets the above criteria have been excluded from 
designation.
    Comment (11): Several commenters stated concern over the regular 
operation, repair, and maintenance of existing oil and gas pipelines 
and water diversion canals within critical habitat boundaries. Several 
commenters are concerned that critical habitat designation will affect 
water district supplies. They stated that significant economic effects 
will occur if operations of banking projects or delivery canals require 
modifications.
    Our Response (11): Activities carried out, funded, authorized, or 
permitted by a Federal agency (i.e., Federal nexus) require 
consultation pursuant to section 7 of the Act if they may affect a 
federally listed species and/or its designated critical habitat. Our 
experience with consultations on the Buena Vista Lake shrew is that few 
oil and gas activities have involved a Federal nexus and have not 
required a consultation under Section 7 of the Act. Regardless, we have 
excluded from critical habitat the units with oil and gas pipelines due 
to their adequate management plans. See Exclusions Under Section 
4(b)(2) of the Act. Similarly, there are no water diversion canals 
within final critical habitat boundaries. The canal that occurs within 
the unit included in the final designation has been removed from the 
critical habitat boundary. Therefore, projects within these canals 
would not require consultation due to critical habitat.
    Comment (12): Several commenters stated that designation would 
result in restrictions or delays to regular operation or maintenance or 
new construction of water delivery or agricultural or industrial 
facilities, requiring consultation with the Service.
    Our Response (12): All lands designated as critical habitat are 
within the geographic area occupied by the species, and are likely to 
be used by the Buena Vista Lake shrew, whether for foraging, breeding, 
growth of juveniles, genetic exchange, or sheltering. Thus, we consider 
all critical habitat units to be occupied by the species. Federal 
agencies already consult with us on activities in areas currently 
occupied by the species or if the species may be affected by the action 
to ensure that their actions do not jeopardize the continued existence 
of the species. Therefore, we believe that the designation of critical 
habitat is not likely to result in additional regulatory burden above 
that already in place due to the presence of the listed species.

Issue 4--Mapping Methodology

    Comment (13): Several commenters asked that specific areas that 
they believed do not exhibit the PCEs be excluded from the critical 
habitat designation.
    Our Response (13): Where site-specific documentation was submitted 
to us providing a rationale as to why an area should not be designated 
critical habitat, we evaluated that information in accordance with the 
definition of critical habitat pursuant to section 3 (5)(A) of the Act 
and the provisions of section 4 (b)(2) of the Act. Following our 
evaluation of the parcels, we made a determination as to whether 
modifications to the proposal were warranted. In the preparation of the 
final rule, we further examined the area proposed and we refined the 
critical habitat boundaries to exclude, where possible within the 
limitations of our minimum mapping scale, those areas that did not, or 
were not likely to, contain the PCEs for the Buena Vista Lake shrew.
    Please refer to the Summary of Changes from the Proposed Rule 
section of this final rule for a more detailed discussion of changes 
and exclusion from the proposed rule.
    Comment (14): One commenter urges the Service to expand critical 
habitat designation to include all habitats essential to the 
conservation of the species and in need of special management. The 
commenter further states that the proposed rule does not ensure 
recovery of the species. They state that the designation is too small 
and too isolated to ensure viable, self-sustaining populations. They 
argued that the rule should include occupied as well as unoccupied 
potential habitat that could be recolonized and provide potential 
dispersal habitats. This commenter also stated that the Service should 
analyze areas described in the Recovery Plan for inclusion in the final 
rule, as well as areas to provide connectivity. One commenter 
recommends identifying locations, such as irrigation ditches and other 
potentially restorable riparian habitats which might provide essential 
connectivity between existing large blocks of core habitat. This 
commenter also wants the required agriculture land location at Atwell 
Island near Alpaugh included as critical habitat.
    Our Response (14): Although we agree that preserving connectivity 
between known occupied locations is important for the conservation of 
the Buena Vista Lake shrew, we do not believe that unoccupied and 
historical locations are essential for the conservation of the species. 
The Recovery Plan for Upland Species of the San Joaquin Valley 
(Recovery Plan) determined that the Buena Vista Lake shrew could be 
conserved by protecting habitat in three or more disjunct occupied 
conservation areas, excluding unoccupied and/or historical locations. 
All units that were described in the Recovery Plan were analyzed to 
determine if the areas exhibited the physical and biological features 
(PCEs) that are essential to the conservation of the shrew and may 
require special management. The five units that we have proposed to 
designate as critical habitat provide for the essential life-cycle 
needs of the species, and provide the habitat components essential for 
the conservation of this species (i.e., the primary constituent 
elements (PCEs) described below in the Primary Constituent Elements 
section). Under the Act, areas without PCEs cannot be designated 
critical habitat, such as these areas suggested for potentially 
restorable areas, unless determined to be essential for the 
conservation of the species. Again, we have determined that the areas 
or units that we have proposed to designate as critical habitat provide 
the habitat components essential for the conservation of this species. 
Therefore, we do not believe that it is necessary to the conservation 
of the Buena Vista Lake shrew to designate critical habitat in 
unoccupied areas.

Issue 5--Procedural Concerns

    Comment (15): Several commenters stated concerns because the 
proposed rule was not accompanied by an economic analysis. They claimed 
it was difficult to comment on the proposed rule without reviewing the 
information from the economic analysis.
    Our Response (15): We made a draft of the economic analysis (DEA) 
available for public comment for the Buena Vista Lake shrew on November 
30, 2004, and accepted comments on the DEA from that date through 
December 15, 2004 (69 FR 69578). The information presented in the DEA 
has been reviewed

[[Page 3443]]

and its analysis has been included in our decisionmaking process for 
the final designation.
    Comment (16): Several commenters stated that the Service could not 
designate critical habitat without first complying with NEPA 
requirements.
    Our Response (16): We published a notice in the Federal Register on 
October 25, 1983 (48 FR 49244) outlining our reasons for our 
determination not to prepare an environmental analyses as defined by 
the NEPA in connection with designating critical habitat under the 
Endangered Species Act of 1973, as amended. It is our position that in 
the Ninth Circuit, as upheld by the courts (Douglas County v. Babbitt, 
48 F.3d 1495 (9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996), 
we do not need to prepare environmental analyses as defined by the 
NEPA.
    Comment (17): One commenter argued that the proposed critical 
habitat designation contains areas that are not occupied by the shrew. 
The commenter stated that Congress restricts the authority of the 
Service to designate critical habitat in areas that are occupied.
    Our Response (17): All lands designated as critical habitat are 
within the geographic area and have been documented to be occupied by 
the species (CNDDB 2004; Maldonado 1992; Williams and Harpster 2001; 
ESRP 2004), and are likely to be used by the Buena Vista Lake shrew, 
whether for foraging, breeding, growth of juveniles, genetic exchange, 
or sheltering. Thus, we consider all critical habitat units to be 
occupied by the species.
    Comment (18): One commenter requested that Unit 2 be excluded from 
designation because it is currently in negotiations for a Section 7 
permit, which the commenter believes would provide the area with a 
sufficient management plan.
    Our Response (18): A current plan provides adequate management or 
protection if it meets three criteria, outlined above in our Response 
to Comment 10. A Section 7 consultation with long-term conservation 
assurances provides for the long-term protection and management of the 
species and its habitat. At the time we received this comment, the 
Service was in negotiations for a Section 7 permit. A Biological 
Opinion with long-term conservation assurances has since been completed 
and issued for the Gooselake project. The Goose Lake Unit has been 
excluded from designation based on the conservation measures that will 
benefit the Buena Vista Lake shrew outlined in the Section 7 
consultation and long term easement on the project. See Exclusions 
Section.
    Comment (19): The City of Bakersfield stated that it is operating 
under current management practices that benefit the shrew and that it 
is currently developing a management plan to benefit the shrew, and 
therefore its unit should be excluded from designation.
    Our Response (19): The City of Bakersfield's Kern Fan Water 
Recharge Unit has been excluded from designation based on the 
conservation measures that will benefit the Buena Vista Lake shrew 
outlined in the management plan which meets the Service's exclusion 
criteria. See Exclusions Section.
    Comment (20): Several commenters stated that the Coles Levee Unit 4 
is covered by a management plan sufficient for the protection of the 
species and its habitat and should be excluded from designation. The 
commenters stated that the conservation easement for the Coles Levee 
Unit, that is held by California Department of Fish and Game, 
specifically recognizes the shrew in Section 5.3 of the easement as a 
``Species of Concern Benefited by this Easement.''
    Our Response (20): We have reviewed and evaluated the conservation 
easement conditions which meet the Service's exclusion criteria. We 
have determined that the Coles Levee Unit 4 should be excluded from the 
designation based on the conservation measures that will benefit the 
Buena Vista Lake shrew. See Exclusions section.

Issue 6--Economic Analysis

    Comment (21): One comment suggested that the analysis should 
address the costs associated with ``allowing the extinction of the 
subspecies of shrew, including the genetic traits necessary for the 
survival of the entire species.'' Furthermore, extinction of the shrew 
would be a loss of opportunity for students and scientists who study 
the species, and who also spend money locally.
    Our Response (21): The purpose of the DEA is to estimate the 
economic effects of conservation activities associated with the listing 
and designation of critical habitat for the shrew, as well as the 
economic effects of the protective measures taken as a result of the 
listing. The Service believes that the benefits of critical habitat 
designation are best expressed in biological terms that can be weighed 
against the expected cost impacts of the rulemaking. Thus, the DEA does 
not provide a monetary measure of the economic benefits of preventing 
extinction.
    Comment (22): One comment indicated that the economic analysis of 
critical habitat designation should measure not only loss of profit 
(i.e., lost producer surplus) of affected businesses, but loss of 
revenue as a measure that may better capture the total economic 
impacts, including ``employment dislocation'' and ``associated ill 
effects.''
    Our Response (22): The Service acknowledges that the economic 
effects identified by the commenter are important, and should be 
addressed. Both categories of effects (i.e., welfare change in terms of 
lost producer surplus, and distributional effects in terms of 
employment dislocation) were addressed in the DEA. However, guidance 
from OMB, and compliance with Executive Order 12866 specifies that 
Federal agencies measure changes in economic efficiency as a means of 
understanding how society will be affected by a regulatory action. This 
provides a measure of the net impact of conservation measures. 
Consideration of how certain economic sectors or groups of people are 
affected in a distributional manner is important and should be 
considered, but OMB encourages Federal agencies to consider 
distributional effects separately from efficiency effects. These 
distinctions are discussed in Sections 1.1.1 and 1.1.2 of the DEA. As 
such, the DEA presents the quantitative effects of shrew conservation 
measures as the efficiency effects, and presents the distributional 
effects of changes in agricultural activities in Section 5.5.
    Comment (23): One comment suggested that the water requirement 
assumption of 3.5 acre-feet per acre is ``much too high, and that use 
of evapotranspiration rates for field crops and grass is not 
appropriate because it does not account for shading or mulch (as 
suitable habitat for the Buena Vista Lake shrew).''
    Our Response (23): Several sources were consulted to determine 
appropriate water requirements for use in the DEA. The estimate of 3.5 
acre-feet per acre was suggested by managers of the Kern National 
Wildlife Refuge (KNWR). As noted by those managers and as reported in 
Section 6.3.5.1 of the DEA, a rate of 3.5 acre-feet per acre provides 
for optimal management of habitat in KNWR. This level was considered 
reasonable because all units are in the same geographic zone, and the 
KNWR water rate reflects optimal management conditions. As noted in 
Section 2.0 of the DEA, estimates of water requirements for wetland 
habitat in the San Joaquin Valley range as high as 10 acre-feet per 
acre.

[[Page 3444]]

    Comment (24): One comment noted that the cost of water purchases 
for maintaining habitat based on $209 per acre-foot is ``not 
accurate,'' and would instead require the purchase of permanent water 
rights for ``a guaranteed source of water.'' Furthermore, current costs 
for water is $2,500 per acre-foot.
    Our Response (24): In drafting the DEA, the need for water was 
investigated for each of the proposed units. This research concluded 
that supplemental water would be necessary on two units (Unit 1, Kern 
National Wildlife Refuge; and Unit 2, Goose Lake), but may or may not 
be warranted on the remaining three units. The DEA assumes that 
supplemental water may be purchased on an as-needed basis. The $209 per 
acre-foot estimate is an average spot price for leased water, 
equivalent to a one-time, one-use acquisition. The purchase of 
permanent water rights would add more certainty to the attainment of 
water, and would be a reasonable and conservative assumption. There is 
little difference between a purchase price of $2,500 per acre-foot and 
discounted annual purchases of leased water, however. Thus, this 
comment does not significantly change the quantitative results of the 
economic analysis.
    Comment (25): One comment letter inquired whether all the water 
applied to shrew habitat would be transpired or evaporated, or whether 
some would soak into the ground for eventual availability to adjacent 
water banks or croplands.
    Our Response (25): The DEA considered the water diversion 
requirement (that is, the gross amount of water that would be applied 
to habitat). It is understood in the DEA that only a portion of that 
water would be used by plants or evaporated, and that at least some of 
that water would soak into the ground and would be available for other 
uses.
    Comment (26): Multiple comments stated that the DEA understated the 
cost to water districts by not considering ``worst case'' operating and 
maintenance costs if the Service imposes restrictions on Federal 
surface water allotments, use of conveyance systems, water banking, and 
other water district activities and programs.
    Our Response (26): A range of possible scenarios was investigated 
through interviews with area water district managers and 
representatives exploring the potential restrictions or other measures 
that could be imposed on water districts or purveyors. The ``worst 
case'' scenarios were considered, including the possibility of much 
higher costs for purchased water, and the possibility of closure of the 
existing facilities to future uses for water banking or withdrawal. 
However, further research revealed that these scenarios could not be 
substantiated through available information and therefore were too 
speculative to be considered reasonably foreseeable.
    Comment (27): A comment submitted on behalf of the City of 
Bakersfield, Kern County Farm Bureau, Kern County Water Agency, and 
J.G. Boswell Company suggested that designation of Unit 3 as critical 
habitat, Kern Fan Water Recharge Area (KFWRA), ``places in jeopardy 
roughly $37.5 million in water resources'' of the City of Bakersfield, 
and ``another $25 million in potential replacement costs'' for other 
entities who bank water (Buena Vista Water Storage District, Cal Water 
Service Company, Kern County Water Agency, and the Olcese Water 
District). The comment states that the KFWRA is an essential element of 
the City's water supply that is relied upon for water storage. If 
banking of water at this project is restricted, the City may be 
required to seek additional water supplies from the already stressed 
State Water Project and Central Valley Project, which will result in 
additional economic and environmental impacts. Further, if banking of 
water during flood events is restricted, Kern River water could flood 
adjacent properties resulting in public safety risks. The commenter 
also suggested that the designation of Unit 3 may alter the diversion 
of water upstream of the habitat area and that Section 7 consultations 
``could cause the Army Corps of Engineers to re-schedule its 
operational releases from Lake Isabella to maintain habitat downstream 
in Unit 3.''
    Our Response (27): Importantly, Unit 3 of the proposed designation 
is excluded from the final designation and impacts to water banking 
projects including the KFWRA associated with shrew conservation 
measures are therefore not expected. The following discussion, however, 
provides some context to the consideration of this project in the DEA. 
Multiple possible management scenarios for Unit 3 were investigated in 
the development of the DEA through interviews with area water district 
managers and representatives exploring the potential restrictions or 
other measures that could be imposed on water districts or purveyors. 
This research determined that a change in the management of the water 
recharge area from its historic operations would not be required if 
Unit 3 is designated as critical habitat. In the case that water 
banking quantity or timing were impacted, economic impacts could occur 
though all information gathered during the development of the DEA did 
not suggest this would be the case.
    Comment (28): One comment noted that, should the banked water from 
the Kern River and Friant-Kern Canal in Unit 3 be made unavailable to 
the Pioneer Project, Kern Water Bank, and Berrenda Mesa Project, the 
``replacement value'' at a rate of $209 per acre-foot for a total of 
43,337 acre-feet banked annually would amount to $9.1 million per year 
(or $130 million over 20 years applying a seven percent discount rate). 
Additionally, the commenter states that the DEA doesn't consider total 
economic impacts; ``secondary impacts'' resulting from timing of water 
supply and economic dislocation may result in an even greater cost. 
Applying a multiplier of 2.2, the commenter suggests impacts may be as 
high as $311 million. The commenter further suggests that 
``conservation of that water may entail fallowing in some other 
location that is supplying the water,'' and cites estimates for field 
crops (e.g., alfalfa) and the loss of revenue that would lead to an 
economic impact of $21.8 million annually. An additional commenter 
suggested that the Friant Water Authority could be affected in its 
ability ``to manage flood waters with Kern and Tulare County water 
districts and growers throughout its Service Area.''
    Our Response (28): Unit 3 is not included in the final designation 
for the BLVS and therefore no costs are expected related to the shrew 
designation in this area for purchase of replacement water. The 
following discussion, however, provides more information on the water 
use in the region. The current operation of Unit 3 is as a water 
recharge area, where excess flows from the Kern River are allowed to 
percolate to the groundwater aquifer for later extraction. The DEA 
concludes that a change in the management of the water recharge area 
from its historic operations would not be required if the area were to 
be designated as critical habitat and, as such, that there would not be 
a need to purchase the replacement of 43,337 acre-feet. In the case 
that operations were significantly affected, and some amount of water 
lost to these projects, the DEA would understate the economic effects 
to water users.
    The Kern Fan Water Recharge Area also serves as a flood control 
management area, where flood flows may be deposited and channeled from 
other areas. The DEA concludes that the area will continue its historic 
use of flood management. To the extent that

[[Page 3445]]

flood management uses were restricted, the DEA would understate the 
economic effects in Unit 3.
    Comment (29): One commenter stated that the Friant-Kern Canal and 
its district distribution systems could be affected by additional 
vegetation control or management on canals directing water to the 
critical habitat units.
    Our Response (29): Neither the Friant-Kern Canal or Friant Water 
Authority and its member districts have facilities within or adjacent 
to any of the proposed units, and their distribution systems are not 
likely to be affected with additional vegetation control requirements.
    Comment (30): One commenter indicated that the requirement for 
water to enhance critical habitat units ``could cause a redirection of 
water in the Friant-Kern Canal,'' and that such a redirection would 
cause a financial burden to the Friant Water Authority. The commenter 
further notes that water purchased by the federal government for the 
critical habitat units ``must be delivered to the sites, and the costs 
of which would be partly provided by the Authority.''
    Our Response (30): The need for supplemental water in each of the 
critical habitat units is effected by the assumption that water will be 
purchased from willing sellers. As such, no redirection or displacement 
of existing uses would take place; rather, supplemental water may be 
purchased on an as-needed basis. A $209 per acre-foot estimate is an 
average spot price for leased water, equivalent to a one-time, one-use 
acquisition. The purchase price is assumed to include cost of delivery, 
and thus it would cover the cost of conveyance systems. The economic 
costs for water purchases are discussed in Section 6.3.5 in the DEA.
    Comment (31): One commenter noted that requirement of water to 
flood habitat may burden the water districts operating the Friant-Kern 
Canal. During dry years, when the amount of water is limited, 
additional burden may occur on the Friant Water Authority and its 
member districts.
    Our Response (31): The supplemental water for the critical habitat 
units is assumed to be purchased on an as-needed basis from willing 
sellers. In dry years, when water to member districts may be limited, 
the critical habitat units may also be limited in acquisition of water. 
In other words, water for the critical habitat units is necessarily 
secondary (or junior) to the member districts, and may not be available 
in dry years. As such, that the units need water is not expected to 
have a supplemental financial burden effect on member districts.
    Comment (32): Two comments indicated that the cost to agriculture 
is understated in that a larger buffer that the 45 feet estimated in 
the DEA would be necessary between farmed lands and critical habitat. 
One commenter also suggested that farmers who typically use aerial 
application of pesticides may have to change to more expensive ground 
application, and incur the higher costs.
    Our Response (32): For the DEA, the Extension Service was consulted 
regarding the appropriate width of a buffer that is intended to prevent 
pesticide drift from farmed lands, and that would also allow for 
maneuverability of farm equipment. This width (45 feet) was used in the 
analysis.
    Aerial application of pesticides is more likely to result in 
pesticide drift than are ground-based methods. There are six or fewer 
farms with cultivated land located adjacent to critical habitat. These 
are farms that are adjacent to Unit 2 (Kern Fan Recharge), Unit 3 
(Goose Lake), and Unit 5 (Kern Lake). To the extent that any or all of 
these farms currently use aerial pesticide applications and switch to 
ground applications then the annual cost to those farms may be 
understated assuming costs of ground application is more expensive. It 
is not clear, however, how and where these farms employ pesticides, and 
it was not determined in the development of the DEA that aerial 
application would be restricted.
    Comment (33): One comment indicated that the cost to agriculture is 
overstated, in that the value of the fruit produced in buffers should 
be subtracted from the cost of the trees.
    Our Response (33): The DEA assumed that the pomegranate tree 
buffers planted on agricultural lands would not be developed for 
commercial production purposes, but to create ``hedgerow thickets'' 
designed to limit pesticide drift. As such, the plantings would be 
dense and managed for brush and foliage rather than fruit production, 
the yield of which would be less than a comparable orchard. Harvesting 
of fruit would be made difficult by the thicket. In conclusion, any 
revenue from fruit sales would be minimal.
    Comment (34): One comment indicated that in Unit 5 (Kern Lake), 
``soil and groundwater conditions will not allow tree production'' in 
the proposed buffer strip.
    Our Response (34): The buffers would be installed in currently 
cultivated farmland. To the extent that the suggested buffer planting 
of a pomegranate hedgerow will not survive because of the soil type, an 
alternative brushy or hedgerow plant could be identified as suitable 
for the soils. The cost of installing the buffer is not expected to 
vary more than a nominal amount from that estimated in the DEA in the 
case that a different hedgerow is required.
    Comment (35): One comment noted that the DEA statement that ``there 
is no cultivated farmland within the boundaries of the proposed 
designation'' is not accurate. The commenter noted that approximately 
47 acres in four fields within Unit 2, Goose Lake, have been cultivated 
in the past, and have been and are eligible for annual loan deficiency 
(Farm Program) payments.
    Our Response (35): To the extent that the land continues to be 
enrolled in the Farm Program, and the owners choose not to cultivate 
the land for crop production in the future in order to avoid an 
incidental take of shrew, then the effect of the critical habitat 
designation would be the difference between net revenue (after 
expenses) of crop production and the farm program deficiency payment. 
This amount will vary depending upon crop and deficiency payment 
amount. In 2004, according to the commenter, the fields received loan 
deficiency payments, indicating that they may not have been cultivated 
and have not been used to produce an alternate crop. If this status 
were to continue in the future, there would be no effect on the owner 
from the critical habitat designation.
    Comment (36): One commenter states that the DEA ``fails to address 
the impacts to upstream agricultural water users if their water 
allotments are reduced or eliminated.''
    Our Response (36): The DEA considered the water needs of the 
critical habitat units, and acknowledges that supplemental water, 
whether required or optional, would necessitate a purchase or lease of 
water from willing sellers. Section 6.3.5 provides an analysis of the 
water requirements and associated costs for each of the units. The DEA 
also contemplated the possibility of closure of the existing facilities 
or effects on water users upstream of the units and determined these 
scenarios were considered unlikely; therefore, associated impacts were 
too speculative to be considered reasonably foreseeable.
    Comment (37): One comment letter requested information as to 
whether critical habitat designation in Unit 5 (Kern Lake) would 
affect: (1) Mosquito abatement; (2) diversions of water from New Rim 
Ditch; (3) timing and

[[Page 3446]]

quantities of flows through the Kern Delta Water District facilities; 
(4) farming activities adjacent to Unit 5; (5) operation of the tile 
drain system; (6) maintenance of canals and roadways; (7) eligibility 
of the site for development into a mitigation bank; (8) eligibility for 
inclusion of Unit 5 into the Metropolitan Bakersfield HCP; and (9) 
activities of the owner to voluntarily supply water to the site.
    Our Response (37): In the development of the DEA, our investigation 
regarding whether changes would be recommended to modify existing 
mosquito abatement activities revealed that producers who follow 
pesticide labels instructions for application will not be impacted by 
shrew conservation activities. The Kern Delta Water District uses the 
New Rim Ditch to transport water to its service members. The New Rim 
Ditch lies adjacent to, but outside of, critical habitat in Unit 5. It 
was determined that requirements for changing diversions, quantities, 
and timing of flows through existing facilities was not reasonably 
foreseeable in this area. The DEA considered farming activities in 
terms of the planting of buffer strips on adjacent lands, including 
those adjacent to Unit 5 (see Section 5.4 of the DEA). Implementation 
of these buffer zones is estimated to cost approximately $5,187 
annually. The DEA also considered whether designation of critical 
habitat would affect operation, or possible removal, of the tile drain 
system. Discussions with the land owner indicate that operations on the 
tile drain system include periodic maintenance and repair of the pumps 
transporting tailwater at the end of the drains; these activities are 
not likely to affect the shrew. Routine maintenance of canals and 
roadways, including grading and adding to gravel base, have been 
conducted in the past and are not anticipated to be restricted due to 
shrew conservation activities. Further investigation did not indicate 
that designation of Unit 5 would limit its eligibility for development 
into a mitigation bank, or inclusion into the Metropolitan Bakersfield 
HCP. The potential for restrictions on additional water supply, or 
changes in the timing of water applications to the site, were also 
considered. Such activities are not likely to be restricted or limited 
as the shrew thrives on moist edges to wetted areas, and could 
reasonably adapt under these conditions.
    Comment (38): One comment letter expressed concern about the future 
status of the tile drain system in Unit 5 (Kern Lake), and the economic 
damage in terms of land values and crop losses ``in excess of $30 
million'' that would result if the Service required it to be 
dismantled.
    Our Response (38): In developing the DEA, the possibility of 
impacts to tile drain system project, including its removal, were 
examined. No evidence was uncovered to give reason to assume that the 
existing system or tile drain in place would require any alteration, 
and therefore it was determined that there would not be any reasonably 
foreseeable loss of land value or crop production associated with 
modification to this project.
    Comment (39): One commenter stated that the Kern Delta Water 
District operates and maintains the New Rim Ditch in Unit 5, and 
expressed concern that the district would be impacted if their ability 
to operate the ditch is affected by the designation.
    Our Response (39): The New Rim Ditch, levee, and adjacent roadway 
are on the boundary, but outside of, the Unit 5. Previous operations 
and use of the New Rim Ditch have been conducive for the survival of 
the shrew, and the seepage has been beneficial for its habitat. As long 
as current operations and use do not change in the future, there would 
be no restrictions placed upon it that would result in economic 
effects.
    Comment (40): One commenter indicated that the Buena Vista Water 
Storage District (BVWSD), which owns the Outlet Canal, located within 
Unit 4, Coles Levee, could be affected if they are unable to line the 
canal as they plan.
    Our Response (40): Proposed Unit 4 is not included in the final 
designation for the BLVS and therefore no further costs are expected 
related to the shrew associated with this potential project. The 
following discussion, however, provides more information on the Outlet 
Canal lining project. A representative of the BVWSD was contacted 
regarding operational plans f